CA: Constituent Assembly
CAT: Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
CAT Committee: UN Committee on the Convention Against Torture
CEDAW: Convention on the Elimination of All Forms of Discrimination Against
Women
CEDAW Committee: UN Committee on the Elimination of Discrimination Against
Women
CERD Committee: UN Committee on the Elimination of Racial Discrimination
CHRGJ: Center for Human Rights and Global Justice, NYU School of Law
CID: “Cruel, inhuman, or degrading” treatment or punishment
CPD: Convention on the Rights of Persons with Disabilities
CRC: Convention on the Rights of the Child
CRC Committee: UN Committee on the Rights of the Child
Draft Principles and Draft UN Principles and Guidelines for the Effective
Guidelines: Elimination of Discrimination Based on Work and Descent
ESCR Committee: UN Committee on Economic, Social and Cultural Rights
HRC: UN Human Rights Committee
ICCPR: International Covenant on Civil and Political Rights
ICERD: International Convention on the Elimination of All Forms of Racial
Discrimination
ICESCR: International Covenant on Economic, Social and Cultural Rights
UDHR: Universal Declaration of Human Rights
UN: United Nations
Center for Human Rights and Global Justice
1
CHRGJ STATEMENT TO NEPAL’S CONSTITUENT ASSEMBLY
I. INTRODUCTION
As it emerges from a prolonged civil war, Nepal stands poised to forge a democratic and peaceful
nation grounded in social justice and human rights. The central feature of this democratic transition is the
country’s new Constitution, which will be drafted by elected members of the Constituent Assembly (CA). In
creating the new Constitution, the CA has the opportunity to crystallize the country’s peace, protect human
rights, and advance Nepal’s political, economic, and social development. It also has the opportunity to
demonstrate Nepal’s commitment to the inherent dignity of all individuals. Recognizing and securing the
human rights of all Nepalese people is vital to fulfilling these paramount goals. In particular, the rights of
Nepal’s Dalit (so-called “untouchable”) population—a group that has faced more than 2,000 years of
systematic discrimination and exclusion on the basis of caste—must finally be realized.
Concept Papers submitted by the CA’s Thematic Committees reflect significant progress towards
codifying Nepal’s commitment to human rights, but some critical gaps remain and must be addressed. To
strengthen the protection of human rights in the new Constitution, the Center for Human Rights and Global
Justice (CHRGJ) at New York University School of Law respectfully submits this report, comprised of a
summary Statement and accompanying Chart, to Nepal’s Constituent Assembly. The Statement and Chart
draw on CHRGJ’s expertise to analyze proposals for the new Constitution in light of Nepal’s obligations
under international human rights law, with particular emphasis on the protection of Dalit rights.1
II. PURPOSE AND METHODOLOGY
A. PURPOSE
The Statement and Chart analyze relevant provisions of the CA Thematic Committee Concept Papers
and concretely identify how to enhance the effectiveness of the proposed provisions in order to better protect
Dalit rights and to further fulfill Nepal’s human rights obligations.
This Statement summarizes Nepal’s obligations under international human rights law and provides a
general overview of some of the issues that are most critical for Dalit rights and that require the CA’s
attention. The Statement highlights substantive rights guarantees in a number of areas and discusses how to
improve the enforcement of such rights. The Statement concludes by identifying some of the most critical
human rights obligations that remain unaddressed by the language currently proposed by the Thematic
Committees.
This Statement should be read together with the accompanying Chart. The Chart analyzes specific
provisions proposed by the Thematic Committees. In order to provide CA members with a resource for
evaluating such proposals in light of international human rights law, the Chart makes detailed
recommendations informed by Nepal’s obligations as a State Party to a number of international human rights
treaties.
B. METHODOLOGY
In order to ensure a timely submission of this report, our analysis is based on our review of the
relevant provisions from Thematic Committee Concept Papers released as of November 6, 2009.2 Our
recommendations are based on a careful review of Nepal’s obligations under the international human rights
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treaties to which Nepal is a party.3 These treaties create binding obligations that must be carried out in good
faith to respect, protect, and fulfill the rights contained therein.4 Core among these are the obligations to
ensure the right to be free from both direct and indirect discrimination and the right to both formal and
substantive equality.5
In addition to its treaty obligations, Nepal recently reaffirmed its commitment to eradicating castebased
discrimination by expressing support for the Draft UN Principles and Guidelines for the Effective
Elimination of Discrimination Based on Work and Descent, which were recently published by the UN
Human Rights Council.6 While non-binding, this document, as recognized by the government of Nepal, is “a
good reference in devising the ways and means to address the issue of caste-based discrimination” and “a
useful tool” to “eliminate this scourge from [Nepalese] society.”7 Where relevant, our analysis therefore also
makes reference to the Draft Principles and Guidelines.
In keeping with Nepal’s obligation under international human rights law to ensure the active and
meaningful participation of marginalized and affected communities in all national decision-making processes,
the CA should consult with and actively solicit input from all marginalized groups in Nepal, including Dalits,
and incorporate their input and recommendations in the new Constitution. Particular attention should be
paid to the needs and voices of those marginalized within the Dalit community, such as Dalit women and
“lower” Dalit castes.
Our analysis relies in part on two documents previously released by CHRGJ: Recasting Justice: Securing
Dalit Rights in Nepal’s New Constitution8—which we released in April 2008, and which analyzes human rights
protections in Nepal’s Interim Constitution—and our Joint Statement on Securing Dalit Rights in the New
Constitution—which we released in February 2009 in conjunction with the International Dalit Solidarity
Network (IDSN) and the Dalit NGO Federation (DNF).9 Our work is also informed by constitutional
analyses and recommendations put forward by Dalit rights groups.10
To date, in all our efforts on Nepal, we have worked closely with—and have been informed by—the
experience and expertise of Nepalese Dalit rights advocates. We have also actively solicited input from
epal’s legal and academic community and have drawn on the expertise of international law and
onstitutional scholars.
Nc
III. SECURING HUMAN RIGHTS IN THE NEW CONSTITUTION
Nepal’s pervasive caste system has a firm hold on Nepalese society. Caste discrimination and the
practice of “untouchability” have resulted in the systematic exploitation and subordination of Dalits. Both
government and private actors subject Dalits to extreme forms of exploitation, violence, and segregation.
“Upper-caste” community members typically force Dalits to live in segregated communities; forbid them
from entering public spaces; deny them access to food, water, and land; and coerce them into caste-based
occupations considered too “ritually impure” for “higher castes.” Attempts by Dalits to defy this prescribed
social order are met with punitive violence and social ostracism and the State frequently fails to step in to
prevent or punish such acts. In addition, as Dalit women and girls in Nepal endure the intersectional burden
of both caste and gender discrimination, they bear the brunt of exploitation and violence and are consistently
denied the ability to fulfill their basic daily needs. Along with Dalit women, some Dalit castes—such as
Gaine, Badi and the Madhesi Dalits living in the Southern part of the country—are subject to additional
exclusion and marginalization.
The drafting of the Constitution presents a critical opportunity for Nepal to address caste
discrimination and memorialize its commitment to equality and human rights. As the most important legal
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s.17
document in the country, the Constitution will be a key way for Nepal to begin to meet its legal obligations to
ensure Dalit rights. This section discusses the major proposals in the Concept Papers that have important
implications for Dalit rights and for Nepal’s general obligation to ensure human rights. It summarizes
Nepal’s international human rights law obligations in each of these areas and highlights some of the
protections that must be included in the Constitution. A more complete provision-by-provision analysis of
relevant proposed language in the Concept Papers can be found in the accompanying Chart.
CHRGJ commends Nepal on its recent ratification of the Convention on the Rights of Persons with
Disabilities. While not considered for the analysis in this Report, the Center urges Nepal to implement its
Convention obligations in the Constitution. CHRGJ also urges Nepal to ratify other human rights treaties,
including the International Convention for the Protection of all Persons from Enforced Disappearances and
the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
A. ACCESS TO CITIZENSHIP
Pursuant to the requirements of the International Covenant on Civil and Political Rights (ICCPR), the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention
on the Rights of the Child (CRC), and the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD), Nepal must ensure non-discrimination in access to citizenship.11 In
recognition of this obligation, the new Constitution should include language that:
Allows foreign spouses of Nepalese women to acquire citizenship in the same way as foreign spouses
of Nepalese men.
Enables children to be equally eligible for citizenship, regardless of whether it is their mother or father
who is Nepalese.
Nepal must also ensure that subsequent laws enacted to provide for the receipt of citizenship
certificates do not have the effect of excluding Dalits from the legal citizenry. For example, requiring proof
of property ownership has prevented many Dalits from obtaining citizenship certificates. International
human rights law prohibits laws that have such a discriminatory effect.12
B. FUNDAMENTAL RIGHTS
1. The Right to Equality and Non-Discrimination
Non-discrimination and equality are fundamental principles of international human rights law.13
Nepal must guarantee both formal and substantive equality and prohibit both direct and indirect
discrimination.14 Direct discrimination occurs when a policy or measure has the purpose of discriminating
against a particular group; indirect discrimination occurs when a measure is neutral on its face but has a
disparate effect on a particular group. Pursuant to the human rights treaties to which Nepal is a party, Nepal
must ensure that no aspect of its policy has the purpose or effect of discriminating on the basis of grounds
such as race, color, descent (including caste), birth, national, ethnic or social origin, nationality, religion,
political or other opinion, language, property, economic position, sex, sexual orientation, gender identity,
pregnancy, maternity, marital status, age, disability, health status, place of residence, or other status.15 The
UN Committee on the Elimination of Racial Discrimination (CERD Committee) has made it clear that the
prohibition of discrimination on the basis of “descent” includes a prohibition of discrimination on the basis
of caste.16 The treaties also provide that States must prohibit and take steps to prevent discrimination by
both State officials and organs and by private partie
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In light of these obligations, the new Constitution should:
Prohibit discrimination on the basis of all of the grounds covered by international human rights law,
as listed above.
Make the list of grounds on which discrimination is prohibited non-exhaustive by adding language
such as “or other status.”
Extend the protection against discrimination to non-citizens by stating that the guarantee applies to
“all persons.”
In furtherance of Nepal’s obligation to ensure substantive equality, the new Constitution should also
recognize and provide for “special measures,” which, under human rights law, may be used both to address
the inherent disadvantages that certain groups experience because of persistent, structural, and historical
inequalities, and to ensure their full enjoyment of human rights.18 “Special measures should be appropriate to
the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness
and proportionality, and be temporary.”19 The provision of special measures must be based on accurate and
disaggregated data, which includes an accurate census.20 As experience in Nepal and other caste-affected
countries has shown, special measures are critical for giving effect to rights guarantees. CHRGJ therefore
strongly urges the CA to provide for special measures throughout the Constitution as an important means of
furthering Nepal’s obligation to ensure substantive equality. Special measures are particularly important for
Dalits, given their history of oppression and disenfranchisement. Special measures should also address
multiple forms of discrimination, such as those faced by women who belong to disadvantaged groups.
In light of these obligations, the new Constitution should:
Provide for special measures to help secure substantive equality and the full enjoyment of human
rights for members of disadvantaged groups, paying particular attention to multiple forms of
discrimination.
Given the pervasive nature of caste discrimination and its deep entrenchment in Nepalese society, the
inclusion of constitutional provisions to specifically address the rights of Dalits and to prohibit caste
discrimination and “untouchability” are critical. Pursuant to ICERD, Nepal must: condemn caste
discrimination and undertake to pursue by all appropriate means a policy of eliminating both direct and
indirect caste discrimination;21 adopt “special measures” to ensure substantive equality for Dalits and other
marginalized groups;22 prevent, prohibit, and eradicate caste-based segregation;23 eradicate propaganda
inciting caste-based discrimination;24 eliminate caste-based discrimination in the enjoyment of civil, political,
economic, social and cultural rights;25 assure effective protection and remedies against acts of caste-based
Discrimination;26 and adopt educational measures to combat caste-based prejudices.27
In light of these obligations, the new Constitution should:
Explicitly prohibit the practice of “untouchability” and caste discrimination.28
Provide that violations of this prohibition are punishable by law and that victims are entitled to
adequate compensation.
Prohibit caste-based segregation and ensure equal access to public places and services, including
places of worship, without discrimination.29
Include an explicit prohibition on the imposition of certain occupations on the basis of caste.
Take measures against the dissemination of ideas of caste superiority and inferiority.30
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In addition, Nepal must also ensure that all of the rights protected in the Constitution are guaranteed
and enforced in a non-discriminatory manner.
2. Civil and Political Rights
The human rights treaties to which Nepal is a party clearly prohibit the civil and political rights
violations that Dalits have experienced. By its terms, the ICCPR requires a State Party to respect and ensure
the rights protected by the Covenant “to all individuals within its territory and subject to its jurisdiction.”31
Thus, “the general rule is that each one of the rights of the Covenant must be guaranteed without
discrimination between citizens and aliens.”32 This is of particular importance to Dalits, as many of them lack
citizenship certificates.
The ICCPR forbids: the arbitrary denial of the right to life;33 torture and cruel, inhuman or degrading
(CID) treatment or punishment;34 slavery, servitude, and forced or compulsory labor;35 arbitrary arrest or
detention;36 arbitrary interferences with privacy, family, and correspondence;37 and unlawful attacks on honor
and reputation.38 Under the ICCPR, Nepal is additionally obligated to guarantee a host of rights to all people
detained.39
Further, the ICCPR mandates Nepal to guarantee: freedom of opinion and expression;40 freedom
of assembly41 and association;42 the right of men and women of marriageable age to marry freely;43 the
freedom to take part in the conduct of public affairs, directly or through freely elected representatives;44 the
right to vote;45 the right to enjoy culture and practice religion freely;46 and the right to freedom of movement
and residence within Nepal.47
In light of these obligations, the new Constitution should protect all the rights and freedoms listed in
the ICCPR. Problematically, several essential civil and political rights and freedoms are entirely missing from
the Thematic Committee proposals reviewed by CHRGJ. The CA must ensure that the following rights are
included in the new Constitution:
Right to freedom of conscience.48
Right to freedom of association.49
Right of citizens to participate in the conduct of public affairs.50
Right to an effective remedy.51
In addition, the new Constitution should:
Guarantee civil and political rights and freedoms to “all persons,” not only to citizens.52
Limit restrictions on civil and political rights to those restrictions allowed under the ICCPR.53
Protect the rights to: freedom of religion; freedom of expression; and freedom from unlawful and
arbitrary interferences with privacy and family, including attacks upon honor and reputation.54
Prohibit arbitrary arrest and detention and guarantee that all people deprived of their liberty have the
right to promptly know the basis for their detention, to challenge their detention before a competent,
impartial, and independent court with legal assistance, and to release and compensation in cases of
wrongful detention.
Reject the establishment of a system of preventive detention.
Prohibit incommunicado detention.55
Provide that all persons charged with a crime must be afforded all of the rights contained in the
ICCPR.56
Clarify that the definition of torture and CID treatment or punishment extends beyond those acts
occurring in traditional custodial detention.57
Provide that all acts of torture and CID treatment or punishment, including those acts which
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constitute complicity or participation in torture and CID treatment or punishment, are punishable by
appropriate penalties, taking into account their grave nature, in order to help to erode the widespread
practice of torture and CID treatment or punishment against the Dalit population in Nepal, including
gender-based violence by private actors against Dalit women.58
Guarantee the right of men and women of marriageable age to marry freely a person of their
choosing, which includes inter-caste marriage.
3. Economic, Social and Cultural Rights
Caste discrimination and the practice of “untouchability” have been used to justify severe violations
of Dalits’ economic, social and cultural rights, causing Dalits to suffer extreme poverty and deprivation.
Nepal is obligated to progressively realize the rights contained in the International Covenant on Economic,
Social and Cultural Rights (ICESCR). While the ICESCR allows for “progressive realization,” Nepal has an
immediate obligation to: ensure non-discrimination in the provision of economic, social, and cultural rights;
and to take immediate steps toward the realization of these rights.59
In light of Nepal’s obligations under the ICESCR, the new Constitution should:
Ensure the right of everyone to an adequate standard of living, including adequate food, clothing, and
housing, and to the continuous improvement of living conditions.
Guarantee the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health, including access to the underlying determinants of health, such as safe and potable
water and adequate health care.60
Provide for free and compulsory primary education for all and for the progressive introduction of free
secondary and higher education.61
Protect the right of all persons to take part in cultural life.62
Guarantee the right of all persons to the protection of the moral and material interests resulting from
their artistic, literary, and scientific creations.63
Prohibit slavery and other forms of forced or compulsory labor.64
Protect the right of all persons to work, to freely choose or accept employment, to just and favorable
work conditions, and to form and join trade unions.65
Guarantee the right to adequate social security including social insurance to everyone, without
discrimination.66
Nepal must ensure both non-discrimination and substantive equality with respect to economic, social
and cultural rights and may take special measures to realize this obligation.67 For example, Nepal should
remove discriminatory references to Dalits in educational materials and provide for special measures to
ensure access to higher education for women, Dalits, and other groups traditionally disadvantaged in their
access to education. Nepal should also consider implementing employment training programs for Dalits and
other groups systematically disadvantaged in access to employment.
4. Women’s Rights
Dalit women and girls in Nepal endure the intersectional burden of both caste and gender
discrimination and, as a result, are even further removed from rights protections. Nepal is obligated to take
all appropriate measures to eradicate discrimination against women and to take special measures to ensure
substantive equality for women.68 These obligations extend to women’s participation in politics,69 access to
education, equality in employment, and access to health care and other economic and social benefits.70
CEDAW affirms that women’s enjoyment of their fundamental rights cannot be restricted on the basis of
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culture and tradition71 and requires that Nepal give special attention to the particular challenges and forms of
discrimination faced by rural women.72
In light of these obligations, the proposed “Women’s Rights” provision in the new Constitution
should:
Prohibit discrimination and ensure equality on the basis of gender.
Provide for the adoption of all appropriate measures to modify the social and cultural patterns of
conduct of men and women in order to eliminate prejudices, practices, and stereotypes based on the
idea that one sex is inferior or superior to the other.73
Include specific rights concerning family relations, including the equal rights of men and women with
respect to entry into marriage, dissolution of marriage, parental rights and responsibilities, family
planning, relations with children, and property and financial assets.74
Provide for special measures to help secure substantive equality and the full enjoyment of human
rights for women, paying particular attention to women who belong to marginalized groups and
endure multiple forms of discrimination.
5. Children’s Rights
Dalit children in Nepal are vulnerable to intolerable work conditions, recruited into armed conflict,
and suffer inadequate access to economic, social and cultural rights, such as education and health. Pursuant
to the requirements of the CRC, the new Constitution should clearly state that children are protected from
performing any work or services that place children’s well-being, physical or mental health, or spiritual, moral,
or social development at risk75 and affirm that the best interests of the child is the primary consideration in all
actions concerning the rights of children.76 Nepal must also protect the right of every child to a nationality.77
Under the Optional Protocol to the CRC on the involvement of children in armed conflict, Nepal is required
to take all feasible measures to prevent children from participating in armed conflict and to promote the
physical and psychological recovery and social reintegration of children affected by armed conflict.78 As with
all rights, Nepal must ensure that children’s enjoyment of their rights is not limited by discrimination.79
In light of these obligations, the proposed “Children’s Rights” provision of the new Constitution
should:
Protect children from performing any work or services that place children’s well-being, physical or
mental health, or spiritual, moral, or social development at risk.
Affirm that the best interests of the child is the primary consideration in all actions concerning the
rights of children.
Affirm that children have a voice in all matters affecting them in all spheres of society, particularly in
the family, school, and their communities.80
Nepal should additionally recognize and take measures to address the fact that Dalit children are
particularly vulnerable to violations of their rights.
C. ISSUES OF IMPLEMENTATION AND ENFORCEABILITY
International human rights law guarantees the right to an effective remedy for human rights
violations.81 This guarantee is of particular significance for Dalits in Nepal and other caste-affected countries
where past experience has shown that guaranteeing rights on paper is insufficient without strong enforcement
mechanisms. Without a right to an effective remedy, the other rights enshrined in the Constitution will be
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hollow. The only proposal concerning the right to effective remedy—the Committee on Fundamental Rights
and Directive Principles’ proposed provision on the implementation of fundamental rights—fails to comply
with Nepal’s obligation under international human rights law to provide all persons with an effective remedy
for violations of their rights.82
In keeping with Nepal’s obligations under international human rights law, the proposed
“Implementation of Fundamental Rights” provision of the new Constitution should:
Clearly provide that all fundamental rights, including economic, social and cultural rights, are fully
justiciable.
Refrain from using language that allows the government to delay implementing the rights guaranteed
in the Constitution.
Provide a right to an effective remedy by clearly providing that all individuals have the right to
petition an independent and competent tribunal to enforce their rights.
Ensure that all levels of the judiciary are competent, independent, and impartial and capable of
providing a remedy for the violations within their jurisdiction.
D. EMERGENCY POWERS
Past state of emergency declarations have dramatically escalated human rights abuses in Nepal,
particularly against Dalits and other marginalized communities. International human rights law strictly limits
the circumstances in which a state of emergency can be declared83 and provides that a number of rights must
be protected even under these circumstances.84 The “Emergency Powers” provision proposed by the
Committee for Preserving the National Interest does not fully comport to all of the requirements of the
ICCPR.
In keeping with Nepal’s obligations under international human rights law, the proposed provision on
“Emergency Powers” in the new Constitution should:
Strictly define the circumstances in which the government can declare a state of emergency, so that it
is only declared in response to the direst situations that threaten the life of the nation.
Indicate that any derogation measures must be limited to the extent strictly required by the exigencies
of the situation.85
Ensure that any measures enacted during a state of emergency do not involve discrimination on any
ground.
Guarantee that, at a minimum, the following non-derogable rights listed in ICCPR Article 4(2) are
protected at all times, even in emergencies: the right to life; the right to be free from torture and CID
treatment or punishment; the right to be free from slavery and forced servitude; the right to be free
from imprisonment for the inability to fulfill a contractual obligation; the right not to be subjected to
retroactive criminal laws and penalties; the right to recognition everywhere as a person before the law;
and the right to freedom of thought, conscience and religion.86
E. IMPLEMENTING DALIT RIGHTS IN STATE STRUCTURES
The caste system has systematically excluded Dalits from the political process in Nepal and has
completely undermined their right to take part in the governance of their country. As noted above, as a State
Party to a number of international human rights treaties, Nepal is obligated to ensure non-discrimination and
substantive equality for women and for members of marginalized groups, such as Dalits. To achieve
substantive equality, States may adopt “special measures,” such as providing for proportionate representation
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in state structures—including the legislature, the judiciary, and national commissions—to ensure that women
and members of marginalized groups can meaningfully participate in governance processes. 87
Such proposals should also consider multiple forms of discrimination, including for example
discrimination faced by women who belong to marginalized groups, such as Dalit women, and should ensure
their proportional representation. Such proposals must also be carried out on the basis of accurate and
disaggregated data,88 including an accurate census in 2011 to establish the actual number of Dalits in Nepal.
This is especially critical given that, according to some unofficial estimates, Dalits may comprise some 20 to
25 percent of the population, even though official estimates put this figure at 15 percent.89 Nepal must also
ensure the right to non-discrimination in participation in elections and within political parties.90
To comply with its obligation to respect, protect, and fulfill human rights, Nepal may establish
national human rights institutions to investigate allegations of rights violations and to monitor Nepal’s
compliance with its human rights obligations.91 In addition to a Human Rights Commission, the Constitution
should also establish a National Dalit Commission to address the systemic effects of caste discrimination. In
order for these bodies to be effective, the new Constitution should:
Establish the Human Rights Commission and the National Dalit Commission as constitutional bodies
with broad investigative and enforcement powers and provide for their financial autonomy.92
Much attention has focused on proposals regarding Nepal’s federal structure and on the creation of
individual states to protect the rights of marginalized groups. Regardless of what form of State structure is
ultimately adopted, Nepal’s obligation to respect, protect, and fulfill human rights extends to all levels of
government—national, regional, and local.93 It is critical that Nepal uphold this foundational principle of
human rights. This principle is of particular relevance to Nepal’s Dalit population, which is not confined to a
particular geographic area or ethnic or linguistic group.
F. GENERAL RECOMMENDATIONS FOR CONSTITUTIONAL INTERPRETATION
In addition to adopting our recommendations concerning specific fundamental rights identified
above and in the accompanying Chart, CHRGJ urges the CA to adopt the recommendations contained in this
section to guide interpretation of the Constitution so as to ensure the full protection of the rights guaranteed
therein. The CA should also consider include a provision indicating that courts should consider international
human rights law when interpreting the Constitution. Such a provision could perhaps be modeled on Article
39 of the Constitution of the Republic of South Africa, 1996.94
1. Non-Interference with Other Rights
In order to ensure that the observance of a particular right cannot be relied upon to infringe on the
rights of others, the Constitution should include a provision that states that nothing in the Constitution shall
be interpreted as permitting any person or group to infringe upon or destroy the rights and freedoms of
others. This provision could be modeled on Article 5 of the ICCPR and the ICESCR.95 It is particularly
important that the CA clarify that nothing in the Constitution may be used to justify perpetuation of
“untouchability” and caste discrimination. For example, the right to freedom of religion cannot be used to
restrict Dalits’ rights to freely practice religion or to justify “untouchability” and other discriminatory features
of the caste system.
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izens.
2. The Rights of “All Persons”
A number of the Thematic Committees’ rights proposals are problematically limited to citizens.
Under the ICCPR, Nepal must guarantee civil and political rights without distinction to “all individuals within
its territory and subject to its jurisdiction.”96 Nepal is also not permitted to make distinctions between
citizens and non-citizens with respect to social and cultural rights.97 While the ICESCR allows some latitude
for developing countries to determine to what extent they will guarantee economic rights to non-nationals,
this provision must be narrowly construed as a limited exception to the general principle that human rights
apply to all persons, and Nepal must strive to ensure the broadest possible enjoyment of economic rights to
all persons.98 The need to ensure human rights for all is particularly important for Dalits who, as noted
above, often lack citizenship certificates. As a general matter, therefore, constitutional rights should refer to,
and be interpreted to cover, “all persons,” not merely cit
3. Legal Loopholes and Caveats
As a foundational principle, international human rights and the embodiment of those rights in the
Constitution must inform legislation, and not the other way around. In other words, laws cannot be used to
undermine the fundamental rights and protections contained in the Constitution. Many of the Thematic
Committee proposals qualify rights with language such as “as provided for in the law.” This sort of language
could be read to undermine the constitutional right by suggesting that the right is or can be qualified by
egislation. Such qualifying language should therefore be avoided and should in no case be interpreted to
ndermine the underlying right.
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IV. CONCLUSION
Ending centuries of caste-based discrimination and ensuring Dalit rights in both public and private
spheres must be a central feature of Nepal’s long awaited social, political, and economic transformation. The
new Constitution will serve as the basis for the development and enforcement of legislative, administrative,
budgetary, judicial, and educational measures that are necessary to secure this transformation. The drafting of
the new Constitution presents the CA with the profound opportunity to demonstrate Nepal’s commitment to
human rights and to affirm the inherent dignity of all individuals. Many of the Thematic Committees’
proposals for the new Constitution take significant steps toward meeting these goals. However, as noted
throughout this Statement and the accompanying Chart, in order for Nepal to meet its human rights
obligations, certain revisions to the proposals are needed. In addition, rights that are not currently reflected in
the proposals must be included and guaranteed. CHRGJ strongly encourages members of the CA to consider
these recommendations as they deliberate on and draft the new Constitution.
11
CHRGJ RECOMMENDATIONS ON PROPOSALS FOR NEPAL’S NEW CONSTITUTION
The Chart below, prepared by the Center for Human Rights and Global Justice (CHRGJ) at New York University School of Law, examines
specific provisions proposed by the Thematic Committees of the Constituent Assembly (CA) of Nepal, and makes detailed recommendations in
light of Nepal’s obligations under international human rights law, with particular emphasis on the protection of Dalit rights.
The Chart analyzes provisions in the following categories: Preamble; Preliminary Section; Access to Citizenship; Right to Equality and Non-
Discrimination; Civil and Political Rights; Economic, Social and Cultural Rights; Women’s Rights; Children’s Rights; Implementation of
Fundamental Rights; Directive Principles; Emergency Powers; and State Structures. Each Chart section includes a brief summary of Nepal’s
relevant obligations under international human rights law, as well as the primary recommendations compelled by those obligations. Where
individual provisions proposed by the Thematic Committees have implications under international human rights law, the Chart includes more
targeted comments on those provisions. In these sections, the Chart is divided into three columns. The first column contains the name of the
relevant Thematic Committee; the second column contains the specific language of their proposal; and the third column contains CHRGJ’s analysis
of the proposal. In this third column, we note where the proposal complies, or fails to comply, with Nepal’s human rights obligations and we
include CHRGJ’s recommendations on how the proposal can be strengthened to better comply with Nepal’s obligations.
In order to ensure a timely submission of this document, the analysis contained in this Chart is based on our review of the relevant
provisions from Concept Papers released as of November 6, 2009. While the Concept Papers analyzed in this Chart cover many of the areas
thought to be key under international human rights law, it is important to note that each provision of the Constitution has potential international
human rights law implications, and the CA should be mindful of the general considerations highlighted in this Chart and the accompanying
Statement throughout the constitutional drafting process.
PREAMBLE
Nepal has obligations under a number of international human rights treaties to take legislative and other measures to respect, protect, and fulfill
human rights without discrimination.99 The language of the Preamble to the Constitution is an important place to reflect Nepal’s strong
commitment to human rights.
In keeping with Nepal’s obligations under international human rights law, the Preamble to the new Constitution should:
Include a stand-alone provision that clearly frames the Constitution as a document rooted in a commitment to equality, human dignity, and
human rights.
Explicitly condemn caste discrimination and highlight Nepal’s commitment to ending caste discrimination and the practice of
“untouchability.”
PRELIMINARY
As noted above, the international human rights treaties to which Nepal is a party require that the Constitution reflect a commitment to human
rights, and to non-discrimination, which is a fundamental precept of human rights.100 Like the Preamble, the “Preliminary” section of the
Constitution is an important place to begin to frame the Constitution in human rights terms.
In keeping with Nepal’s obligations under international human rights law, the Preliminary provisions in the Constitution should:
Contain a firm commitment to non-discrimination on all prohibited grounds, including caste.
Avoid caveats such as “as provided for in law,” as they run the risk of being used as loopholes to deny the rights contained in the
Constitution.
Establish that all government organs, at all levels, are obligated to respect, protect, and fulfill human rights.
CITIZENSHIP
International human rights law provides that every child has the right to a nationality101 and prohibits “discrimination with regard to the acquisition
of nationality . . . as between legitimate children and children born out of wedlock or of stateless parents or based on the nationality status of one or
12
13
both of the parents.”102 Under the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), Nepal is required
to ensure access to citizenship without discrimination, including on the basis of gender and caste.103 In the past, restrictions on citizenship have
been used to limit Dalits’ access to fundamental rights by excluding Dalits from the legal citizenry. This provision is therefore particularly important
for the protection of Dalit rights.
In keeping with Nepal’s obligations under international human rights law, the proposed citizenship provisions in the new Constitution should:
Allow foreign spouses of Nepalese women to acquire citizenship in the same way as foreign spouses of Nepalese men.
Ensure that children are equally eligible for citizenship regardless of whether it is their mother or father who is Nepalese.
Committee Proposed Provision CHRGJ Recommendations
Committee on the
Protection of the Rights
of Minorities and
Marginalized
Communities
“(1) All Nepali citizens shall have the right to receive
citizenships in the name of their father or mother or both.
(2) Any child who is born within the territory of Nepal but the
whereabouts of whose parents are not known shall have the
right to obtain citizenship as provided for in the laws.
(3) All Nepali citizens shall have the right to obtain citizenship
by descent, caste or by providing details.
(4) The State shall not subject any citizen to discrimination of
any kind on the grounds of being indigenous peoples, dalits,
Tarai people, Madheshis, Muslims or of castes, tribes, religion,
color, language, sex, sexual and gender identity, political or other
thoughts, national or social origin, property, birth or region or
physical or mental incapacity or the state of disability or any
other status in the acquisition, application and termination of
citizenship.
(5) Transgenders shall have the right to acquire citizenships
describing them as transgenders along with their gender identity.
(6) The acquisition and termination of citizenship and other
arrangements regarding naturalized and honorary citizenship
shall be as prescribed in the law.”
In keeping with Nepal’s international human rights
obligations, this provision:
Allows citizenship to come from the mother
or the father.
Bars discrimination on the basis of caste and
other forbidden grounds in the granting of
citizenship.
To further fulfill Nepal’s human rights obligations,
this provision should be amended to:
Include a provision that provides that the
spouses of both Nepalese men and women
can apply for citizenship in the same way.
Committee on
Fundamental Rights and
Directive Principles
“Citizenship by Descent or Heredity:
1. The following individuals that live permanently in Nepal will
be provided Nepalese citizenship:
a. An individual whose parents were Nepalese citizens during
his/her birth,
b. An individual who was born in Nepal of a Nepali citizen,
married to a foreign national, and living permanently in Nepal
and both of whose parents have obtained Nepalese citizenship
To further fulfill Nepal’s human rights obligations,
this provision should be amended to:
Provide that children are equally eligible for
citizenship regardless of whether it is their
mother or father who is Nepalese, rather than
requiring that both parents be Nepalese
citizens.
14
before he/she obtains the certificate of Nepalese citizenship.
2. Every minor who is found within the Nepalese territory but
whose parents are not identified will be recognized as a Nepali
citizen on the basis of heredity till his/her parents are
identified.”
Committee on
Fundamental Rights and
Directive Principles
“Provision Regarding Naturalized Citizenship:
1. After the commencement of this Constitution, a foreign
national married to a Nepalese citizen can obtain naturalized
Nepalese citizenship in accordance with the existing laws if
he/she wishes so on the condition that he/she has lived legally
in Nepal for fifteen years and denounces the citizenship of the
foreign country.
However, if a foreign lady married, prior to the commencement
of the Constitution, to a Nepalese male, wishes to obtain the
certificate of Nepalese citizenship, she can obtain naturalized
Nepalese citizenship after applying for denouncement of her
citizenship of the foreign country.
2. An individual born in Nepal of a Nepali citizen as a mother
and living in Nepal but whose father is not identified can obtain
naturalized Nepalese citizenship in accordance with the existing
laws of Nepal.
3. An individual born in Nepal of a Nepali citizen married to a
foreign national, and living permanently in Nepal and who has
not obtained citizenship of a foreign country can obtain
naturalized Nepalese citizenship in accordance with the existing
laws of Nepal.”
This provision fails to comply with Nepal’s
obligations under international human rights law
because it:
Discriminates on the basis of gender with
respect to couples married prior to the
commencement of the new Constitution by
making it harder for foreign spouses of
Nepalese women to naturalize than foreign
spouses of Nepali men.
Requires children born of one foreign parent
or of an unidentified father to obtain
citizenship through naturalization rather than
by descent.
To further fulfill Nepal’s human rights obligations,
this provision should be amended to:
Provide the same naturalization requirements
for foreign spouses of Nepalese men and
women regardless of whether they were
married before or after the commencement of
the new Constitution.
Provide that all children born of one Nepali
citizen parent are eligible for citizenship by
descent, rather than through naturalization,
regardless of whether it is their mother or
father who is a Nepali citizen.
Committee on
Fundamental Rights and
Directive Principles
“Citizenship Showing Descent and Gender Identity: Every
citizen will be provided with Nepalese citizenship on the basis of
his/her mother’s or father’s heredity and showing his/her
gender identity.”
In keeping with Nepal’s international human rights
obligations, this provision:
Allows citizenship to come from the mother
or the father.
15
FUNDAMENTAL RIGHTS
Under international human rights law, the obligation to ensure fundamental rights must be guided by the following principles.
No right may be relied upon to justify infringing upon the rights of others.
The CA should ensure that the “Fundamental Rights” section of the new Constitution contains a provision that states that nothing in the
Constitution shall be interpreted as permitting any person or group to infringe upon or destroy the rights and freedoms of others. This
provision could be modeled on Article 5 of the ICCPR and the ICESCR.104 It is particularly important that the CA clarify that nothing in
the Constitution may be used to justify perpetuation of “untouchability” and caste discrimination.
The rights to equality and non-discrimination inform all other rights.
While the inclusion of a separate provision on equality and non-discrimination in the Constitution is critical, Nepal must also ensure that all
constitutional provisions comply with these fundamental principles.
International human rights and the embodiment of those rights in the Constitution must inform legislation, and not the other way around. In other
words, laws cannot be used to undermine the fundamental rights and protections contained in the Constitution. Some of the proposals reviewed
for the rights concerning education, employment, labor, and social security include language that the rights shall be implemented “as prescribed by
law.” This sort of language could be read to undermine the constitutional right by suggesting that the right is or can be qualified by legislation.
Such qualifying language should therefore be avoided and should in no case be interpreted to undermine the underlying right.
RIGHT TO EQUALITY AND NON-DISCRIMINATION
Right to Equality
Non-discrimination and equality are fundamental principles of international human rights law.105 Nepal must guarantee both formal and substantive
equality and prohibit both direct and indirect discrimination.106 Direct discrimination occurs when a policy or measure has the purpose of
discriminating against a particular group; indirect discrimination occurs when a measure is neutral on its face but has a disparate effect on a particular
group. Pursuant to the human rights treaties to which Nepal is a party, Nepal must ensure that no aspect of its policy has the purpose or effect of
discriminating on the basis of grounds such as race, color, descent (including caste), birth, national, ethnic or social origin, nationality, religion,
political or other opinion, language, property, economic position, sex, sexual orientation, gender identity, pregnancy, maternity, marital status, age,
disability, health status, place of residence, or other status.107 The UN Committee on the Elimination of Racial Discrimination (CERD Committee)
has made it clear that the prohibition of discrimination on the basis of “descent” includes a prohibition of discrimination on the basis of caste.108
16
The treaties also provide that States must prohibit and take steps to prevent discrimination by both State officials and organs and by private
parties.109
To achieve substantive equality, international human rights law provides that States may adopt “special measures” to address the inherent
disadvantage that certain groups experience because of persistent, structural, and historical inequalities, and to ensure their full enjoyment of human
rights.110 “Special measures should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the
principles of fairness and proportionality, and be temporary.”111 Provided that they comply with these requirements, special measures do not violate
the prohibition on discrimination.112 In all cases, special measures should be carried out on the basis of “accurate data, disaggregated by race, colour,
descent and ethnic or national origin and incorporating a gender perspective, on the socio-economic and cultural status and conditions of the
various groups in the population and their participation in the social and economic development of the country.”113 Special measures should not be
limited to specific groups, as other groups may need similar provisions now or in the future, but instead should be broadly available to disadvantaged
groups.114 As experience in Nepal and other caste-affected countries has shown, guaranteeing rights in the absence of taking special measures is
insufficient to achieve substantive equality. CHRGJ therefore strongly urges the CA to provide for special measures throughout the Constitution as
an important means of furthering Nepal’s obligation to ensure substantive equality.
As a general matter, human rights must be enjoyed by all persons within a State’s territory or jurisdiction, regardless of their citizenship status.115
While States may differentiate between citizens and non-citizens with respect to a narrow subset of rights, such as the right to vote and certain
economic rights, States must always ensure that non-citizens are equally protected from discrimination and are guaranteed equal protection and
recognition before the law.116
The rights to equality and non-discrimination inform all other rights; while the inclusion of a separate provision on equality and non-discrimination
in the Constitution is critical, Nepal must also ensure that all constitutional provisions comply with these fundamental principles.
In keeping with Nepal’s obligations under international human rights law, the proposed provision on the “Right to Equality” in the new
Constitution should:
Prohibit discrimination on the basis of all of the grounds covered by international human rights law.
Make the list of grounds on which discrimination is prohibited non-exhaustive by adding language such as “or other status.”
Provide for special measures to help secure substantive equality and the full enjoyment of human rights for members of disadvantaged
groups, paying particular attention to those who suffer multiple forms of discrimination.
Extend the protection against discrimination to non-citizens by stating that the guarantee applies to “all persons.”
Committee Proposed Provision CHRGJ Recommendations
Committee on the
Protection of the Rights
of Minorities and the
Marginalized
Communities
“Right to Equality:
(1) All citizens shall be equal before the law.
(2) There shall be no discrimination of any kind against any
citizen in the application of general laws on grounds of being
indigenous peoples, dalits, Tarai people, Madheshis, Muslims or
In keeping with Nepal’s international human rights
obligations, this provision:
Makes the list of grounds on which
discrimination is prohibited non-exhaustive.
Provides for special measures to secure
17
of religion, color, caste, tribe, sexual and gender identity,
language, political or other thoughts or social origin, property,
birth or region or physical or mental incapacity or the state of
disability or in any other state.
(3) There shall be no discrimination by the State against any
citizens on grounds of anything such as indigenous peoples,
dalits, Tarai people, Madheshis, Muslims, religion, color, caste,
tribe, sexual, sex, sexual and gender identity, language, political
or other thoughts or social origin or ethnic discrimination and
untouchability, property, birth or region or physical or mental
incapacity or the state of disability or in any other status.
Provided that the State shall make special arrangements, along
with a provision for compensation for victimization in the past,
on the basis of positive discrimination for the protection,
development and empowerment of those who are economically,
socially, politically and educationally backward and those who
are poor in health condition by identifying such communities or
classes.
(4) There shall be no discrimination of any kind against anyone
on grounds of being indigenous peoples, Dalits, Tarai people,
Madheshis, Muslims, religion, color, caste, tribe, sex, sexual or
gender identity, language, political or other thoughts or social
origin, property, birth or physical or mental incapacity or the
state of disability or any other status with regard to providing
any facility including remuneration for the same work.”
substantive equality and the full enjoyment of
human rights for members of disadvantaged
groups.
In order to strengthen Nepal’s commitment to
international human rights law, this provision should:
Extend the protection against discrimination
to non-citizens by stating that the guarantee
applies to “all persons.”
Explicitly prohibit discrimination on all of the
grounds covered by international human
rights law.
Committee on
Fundamental Rights and
Directive Principles
“ Right to Equality:
1. All citizens shall be equal before the law. No person shall be
denied the equal protection of the laws.
2. The State shall not discriminate against any citizen in the
application of general laws on grounds of religion, colour, caste,
tribe, gender, sexual orientation, biological condition ,disability,
health condition, marital condition, pregnancy, economic
condition, origin, language or region, ideological conviction or
other similar grounds.
Provided that, nothing shall be deemed to prevent the making of
special provisions by law for the protection, empowerment or
advancement of women, dalits, indigenous ethnic tribes (adiwasis
In keeping with Nepal’s international human rights
obligations, this provision:
Provides for special measures to help ensure
substantive equality and the full enjoyment of
human rights for members of disadvantaged
groups, including women.
Makes the list of grounds on which
discrimination is prohibited non-exhaustive.
In order to strengthen its commitment to
international human rights law, this provision should:
Explicitly prohibit discrimination on all of the
18
janjatis), Madhesis or farmers, workers, oppressed region,
Muslims, backward class, minority, marginalized and endangered
communities or destitute people, youths, children, senior
citizens, gender or sexual minorities, disabled or those who are
physically or mentally incapacitated and helpless people, who are
economically, socially or culturally backward.
3. The State shall not discriminate among citizens on grounds of
religion, color, race, caste, tribe, gender, sexual orientation,
biological condition, disability, health condition, marital
condition, pregnancy, economic condition, origin, language or
region, ideological conviction or other similar grounds.
4. There shall be no discrimination with regard to remuneration
and social security on the basis of gender for the same work.
5. All the children shall have equal right to ancestral property
without any gender discrimination.”
grounds covered by international human
rights law, as listed above
Make clear that the list of groups eligible for
special measures is non-exhaustive.
Extend the protection against discrimination
to non-citizens by stating that the guarantee
applies to “all persons.”
Provide for equal remuneration for work of
equal value and equal access to social security
without discrimination on any basis, not
simply on the basis of gender.
Provide that all children shall have an equal
right to ancestral property without
discrimination on any basis, not simply on the
basis of gender.
Right Against “Untouchability” and Discrimination
All of the human rights treaties to which Nepal is a party reject the inherently discriminatory features of the caste system. The grossest
manifestation of this system of pervasive discrimination is the practice of “untouchability” which has ensured the complete subordination and
segregation of Dalits in Nepal. In October 2009, the United Nations High Commissioner for Human Rights called on States to join together “to
eradicate the shameful concept of caste.”117 Nepal’s recent endorsement of the Draft UN Principles and Guidelines on the Effective Elimination of
Discrimination Based on Work and Descent reflects the government’s commitment to fulfilling its international human rights obligations in this
area, a commitment that should also be reflected in the Constitution.
Pursuant to ICERD, Nepal must: condemn caste discrimination and undertake to pursue by all appropriate means a policy of eliminating both direct
and indirect caste discrimination;118 adopt “special measures” to ensure substantive equality for Dalits and other marginalized groups;119 prevent,
prohibit, and eradicate caste-based segregation;120 eradicate propaganda inciting caste-based discrimination;121 eliminate caste-based discrimination in
the enjoyment of civil, political, economic, social and cultural rights;122 assure effective protection and remedies against acts of caste-based
discrimination;123 and adopt educational measures to combat caste-based prejudices.124
In light of the pervasive nature of caste discrimination and its deep entrenchment in Nepalese society, the inclusion of constitutional provisions to
specifically address the rights of Dalits and to prohibit caste discrimination and “untouchability” are critical. In addition, Nepal must also ensure
that all of the rights protected in the Constitution are guaranteed and enforced in a non-discriminatory manner.
In keeping with Nepal’s obligations under international human rights law, the proposed provision on “untouchability” and discrimination in the new
Constitution should:
Explicitly prohibit the practice of “untouchability” and caste discrimination.125
19
Provide that violations of this prohibition are punishable by law and that victims are entitled to adequate compensation.
Prohibit caste-based segregation and ensure equal access to public places and services, including places of worship, without discrimination.126
Include an explicit prohibition on the imposition of certain occupations on the basis of caste.
Take measures against the dissemination of ideas of caste superiority and inferiority.127
In keeping with Nepal’s obligations under international human rights law, the proposed provision on “Rights Regarding Dalit Community” should
additionally:
Provide for special measures to ensure substantive equality for Dalits.
Pay particular attention to the need to ensure substantive equality for Dalit women who endure the intersectional burden of both caste and
gender discrimination.
As noted above, the provision of special measures must be based on accurate and disaggregated data, which includes an accurate census.128
Committee Proposed Provision CHRGJ Recommendations
Committee to Decide
the Basis of Cultural and
Social Solidarity
“Right against untouchability and caste discrimination:
(1) No person shall be discriminated against or made subject to
untouchability on the basis of caste, descent, community (s/he
belongs to) or profession (s/he has). Such discriminatory
behaviour shall be considered a serious crime and made
punishable by law. The victim shall get compensation as
determined by law.
(2) No individual shall be discriminated against in any place, or
in the use of services, facilities and other usable matters on basis
of one's caste and ancestry.
(3) No discrimination shall be made on the basis of caste,
ancestry, or community (to which one belongs to) while
producing, distributing, selling, buying or receiving objects,
services or facilities.
(4) No expression shall be made which is based on hatred, or
justifies social discrimination on the basis of caste system, or
ideas disseminated, or encourage things that may encourage
caste discrimination, or use the kind of expression that will put
individuals who belong to a particular caste, descent, or
profession, or a religious group – to a higher or lowly status.
(5) Any action which is contrary to clause (2), (3), and (4) shall
be punishable by law.”
In keeping with Nepal’s obligations under
international human rights law, this provision:
Expansively repudiates “untouchability” and
caste discrimination.
Provides that discrimination on these grounds
shall be punishable by law and that victims
shall receive compensation.
Prohibits caste-based discrimination in access
to public places and services.
Prohibits the dissemination of ideas of caste
superiority and inferiority.
In order to strengthen Nepal’s commitment to
international human rights law, this provision should:
Specifically prohibit the imposition of certain
occupations on the basis of caste.
Prohibit caste-based segregation.
Provide that victims shall receive “adequate”
compensation.129
Committee on the “Right Against Discrimination and Untouchability: In keeping with Nepal’s obligations under
20
Protection of the Rights
of Minorities and
Marginalized
Communities
(1) No person shall, on grounds of indigenous peoples, dalits,
Tarai people, Madheshis, Muslims, the disabled, religion, color,
sex, region, caste, tribe, descent, community or occupation, be
subject to discrimination and untouchability in any form.
(2) No person shall, on grounds of indigenous peoples, dalits,
Tarai people, Madheshis, Muslims, the disabled, religion, color,
sex, region, caste, tribe, community or occupation, be deprived
of the use of services, conveniences or utilities available to the
public, or be denied access to any public place.
(3) No indigenous peoples, dalits, Tarai people, Madheshis,
Muslims, the disabled, or no person of any particular religion,
color, sex, region, caste, tribe, descent, community, occupation
shall, in relation to the production or making available any
goods, services or conveniences, be prevented from purchasing
or acquiring such goods, services or conveniences or no such
goods or conveniences shall be sold or distributed only to
members of a particular religion, color, region, caste, tribe,
descent, community or state.
(4) The State shall discourage discrimination or a feeling of
superiority or ethnic intolerance, indignity or hatred to be taking
place on ethnic, linguistic, religious, cultural, economic, social,
educational, political, physical, health, sex, sexual and gender
identity, origin or regional or any other grounds among citizens.
(5) Acts contrary to Sub-Articles (1), (2), (3) and (4) shall be
punished as heinous social crimes against humanity and the
victim shall get due compensation as per the law.”
international human rights law, this provision:
Expansively repudiates “untouchability” and
discrimination on a number of grounds.
Provides that discrimination on these grounds
shall be punishable by law and that victims
shall receive compensation.
Provides that the State will discourage the
dissemination of ideas of caste superiority and
inferiority.
In order to strengthen Nepal’s commitment to
international human rights law, this provision should:
Prohibit caste-based segregation and ensure
equal access to public places and services,
including places of worship, without
discrimination.130
Specifically prohibit the imposition of certain
occupations on the basis of caste.
Provide that victims shall receive “adequate”
compensation.131
Committee on
Fundamental Rights and
Directive Principles
“Right Against Untouchability and Racial Discrimination:
1. No person shall, on the ground of caste, tribe, descent
(origin), community, occupation or physical condition, be
subject to discrimination and untouchability in any form.
2. No person belonging to any particular caste or tribe shall, in
relation to the production or making available of any goods,
services or conveniences, be prevented from purchasing or
acquiring such goods, services or conveniences; and no such
goods, services or conveniences shall be sold or distributed only
to members of a particular caste or tribe.
3. No one shall be allowed to purport to demonstrate superiority
In keeping with Nepal’s obligations under
international human rights law, this provision:
Prohibits discrimination based on caste and
“untouchability.”
Provides that discrimination on these grounds
shall be punishable by law and that victims
shall receive compensation.
Prohibits the dissemination of ideas of caste
superiority and inferiority.
Explicitly prohibits the imposition of certain
occupations based on caste.
21
or inferiority of any person or a group of persons belonging to
any caste, tribe or origin; or to justify social discrimination on
the basis of caste and tribe or untouchability; or to disseminate
ideas based on untouchability or caste superiority or hatred
justifying social discrimination; or to encourage caste
discrimination in any form.
4. No person shall be subjected to any form of discrimination by
engaging him or her in an act or work contrary to his or her will,
by practicing or not practicing untouchability on the basis of
caste or tribe.
5. All forms of untouchability and discriminatory acts shall be
punishable in accordance with law and an individual victimized
by such act shall have a right to proper compensation.”
In order to strengthen Nepal’s commitment to
international human rights law, this provision should:
Prohibit caste-based segregation and ensure
equal access to public places and services,
including places of worship, without
discrimination.132
Clarify that victims shall receive “adequate”
compensation.133
Committee on
Fundamental Rights and
Directive Principles
“Rights Regarding Dalit Community:
1. No discrimination, humiliation, intolerant behaviour or
discrimination shall be inflicted against the dalit community on
the ground of caste and tribe and untouchability. Such an act
shall be regarded as a social crime and punishable in accordance
with law. The person who is victim of such act shall have a right
to receive proper compensation.
2. The dalit community shall have the right to participation in all
the organs, agencies and sectors of the state mechanism on the
basis of inclusive proportionate system, along with
compensation. The provision for compensation shall be as
prescribed by law.
3. The dalit community shall have the right to special privileges
in education, health, employment and social security on the basis
of positive discrimination.
4. The destitute dalits shall be given priority while provisioning in
accordance with Clause (3).
5. The dalit community shall have the right to get special
privileges for the use, protection and development of their
traditional occupation, knowledge, skill and technology, and for
reaping professional gains thereof in accordance with law.”
In keeping with Nepal’s obligations under
international human rights law, this provision:
Prohibits discrimination based on caste and
“untouchability.”
Provides that perpetrators of discrimination
shall be punished and the victims
compensated.
Provides for special measures, including
proportionate representation, to help ensure
substantive equality for Dalits.
In order to strengthen Nepal’s commitment to
international human rights law, this provision should:
Include an explicit prohibition on the
imposition of certain occupations on the basis
of caste and otherwise ensure that Clause (5)
cannot be interpreted as a justification for
forcing Dalits to remain in “traditional
occupations.”
Provide that special measures should pay
particular attention to the multiple forms of
discrimination faced by Dalit women.
Clarify that victims shall receive “adequate”
22
The human rights treaties to which Nepal is a party clearly prohibit the civil and political rights violations that Dalits and others experience in Nepal.
The International Covenant on Civil and Political Rights (ICCPR) forbids: the arbitrary denial of the right to life;135 torture and cruel, inhuman or
degrading treatment or punishment;136 slavery, servitude, and certain instances of forced or compulsory labor;137 arbitrary arrest or detention;138
arbitrary interferences with privacy, family, and correspondence;139 and unlawful attacks on honor and reputation.140 The ICCPR also mandates that
Nepal allow for freedom of opinion and expression;141 freedom of assembly142 and association;143 the right of men and women of marriageable age
to marry freely;144 the freedom to take part in the conduct of public affairs, directly or through freely elected representatives;145 the right to vote;146
the right to enjoy culture and practice religion freely;147 and the right to freedom of movement and residence within Nepal.148 In addition, the
ICCPR protects a host of specific rights for individuals who are within the criminal justice system.149
By its terms, the ICCPR requires a State Party to respect and ensure the rights protected by the Covenant “to all individuals within its territory and
subject to its jurisdiction.”150 Thus, “the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination
between citizens and aliens.”151 This is of particular importance to Dalits, as many of them lack citizenship certificates.
Problematically, several essential civil and political rights and freedoms are entirely missing from the proposals for the new Constitution reviewed for
this Chart, including: the right of freedom of conscience;152 the right of freedom of association;153 the right of citizens to participate in the conduct
of public affairs;154 and the right to an effective remedy.155 Without ensuring the protection of these rights, the new Constitution will fail to comply
with Nepal’s international human rights obligations.
The new Constitution should also explicitly prohibit enforced disappearance and secret detention—violations that were widespread in Nepal during
the civil war—as they have been held to violate both the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT).156
compensation.134
CIVIL AND POLITICAL RIGHTS
Right to Freedom
The “Right to Freedom” provision proposed by the Committee on Fundamental Rights and Directive Principles protects a number of important
freedoms guaranteed by international human rights law, including: freedom of opinion and expression;157 freedom of assembly;158 freedom to form
and join trade unions;159 freedom of movement and of residence;160 and freedom to choose one’s work.161 As discussed above, these freedoms must
be provided to all persons and should not be limited to citizens.162
Problematically, this provision is framed as an exhaustive one, yet it fails to reference many important civil and political rights and freedoms which
are addressed in other proposals for the new Constitution, including: the right to life;163 the right to freedom from slavery, servitude, and certain
23
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental
Rights and
Directive
Principles
“Right to Freedom (Independence):
1. Except as provided by the law, no person shall be deprived
of his/her personal liberty.
2. Every citizen shall have the following freedoms:
a. Freedom of opinion and expression,
b. Freedom to assemble peacefully and without any arms,
c. Freedom to form unions and organizations,
d. Freedom to form political parties,
e. Freedom to move and reside in any part of Nepal,
f. Freedom to engage in any occupation or be engaged in
employment, industry and trade.
Provided that,
1. Nothing in sub-clause (a) shall be deemed to prevent the
making of laws to impose reasonable restrictions on any act
which may undermine the nationality, sovereignty,
independence and integrity of Nepal, or the harmonious
In keeping with Nepal’s international human rights
obligations, this provision:
Protects a number of important rights enumerated in
the ICCPR.
Of particular relevance for Dalits, the provision
provides for the freedom to move and reside in any
part of Nepal and the freedom to engage in any
profession.
To further fulfill Nepal’s human rights obligations, this
provision should be amended to:
Clarify that it is not an exhaustive listing of all of the
civil and political rights and freedoms guaranteed
under the Constitution.
Avoid broad language that allows these rights to be
restricted to maintain “the harmonious relations
instances of forced labor;164 the right to freedom from torture and cruel, inhuman or degrading treatment or punishment;165 the right to liberty and
security of the person;166 the right to freedom from arbitrary arrest and detention;167 the right to seek, receive, and impart information;168 right to
freedom from advocacy of discriminatory hatred, hostility, or violence;169 the right of men and women of a marriageable age to freely marry a person
of their choosing;170 the right to a fair legal process;171 and the right equality before the law and equal protection of the law.172
Moreover, as noted above, several essential civil and political rights and freedoms are not protected in this provision, or in the other proposals for
the new Constitution reviewed for this Chart. In particular, the “Right to Freedom” section should specifically include the right to freedom of
thought and conscience173 and the right to freedom of association.174 At this writing, neither of these rights is explicitly provided for in the Concept
Papers.
These rights and freedoms may only be limited under very narrow circumstances through restrictions “imposed in conformity with the law and
which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others.”175
In keeping with Nepal’s obligations under international human rights law, the proposed “Right to Freedom” provision in the new Constitution
should:
Clarify that it is not an exhaustive listing of all of the civil and political rights and freedoms guaranteed under the Constitution.
Refrain from imposing restrictions on these freedoms beyond those allowed by the ICCPR (as noted above).
Extend these rights and freedoms to all persons, not merely to citizens.
24
relations subsisting among the federal units, or which may
jeopardize the harmonious relations subsisting among the
people of various castes, tribes, religions or communities, or on
any act of defamation, contempt of court or incitement to an
offence, or on any act which may be contrary to decent public
behaviour or morality.
2. Nothing in sub-clause (b) shall be deemed to prevent the
making of laws to impose reasonable restrictions on any act
which may undermine the sovereignty, integrity or law and
order situation in Nepal.
3. Nothing in sub-clause (c) shall be deemed to prevent the
making of laws to impose reasonable restrictions on any act
which may undermine the sovereignty and integrity of Nepal,
or which may jeopardize the harmonious relations subsisting
among the people of various castes, tribes, religions or
communities, or which may instigate violence, or which may be
contrary to decent public behaviour or morality.
4. Nothing in sub-clause (d) shall be deemed to prevent the
making of laws which are in the interest of the general public,
or which are made to impose reasonable restrictions on any act
which may undermine nationality, sovereignty and integrity of
Nepal, or discourage any act of spying against the country, or
revealing national secrecy, or assisting a foreign country or
organization or representative (committing treason) in a way
that affects the external security of Nepal in case of war or
peace, or undermine harmonious relations among the federal
units, or act towards spreading racial or communal hatred, or
undermine harmonious relations among different castes, tribes,
religions and ethnic communities, or in order to discourage an
act of restricting citizens of certain caste, language, religion,
community or gender to take the membership of any political
party only on racial, linguistic, religious, communal or gender
grounds, or to discourage an act of forming political parties in
a way that makes discrimination among the citizens or engaging
in any violent activity or any activity which may be contrary to
decent public behaviour or morality.
5. Nothing in sub-clause (e) shall be deemed to prevent the
subsisting among the people of various castes.”
Limit restrictions on these rights to those allowed
under international human rights law.
25
making of laws to impose reasonable restrictions on any act
which may undermine the interest of general public or
harmonious relations subsisting among federal units or
undermine harmonious relations subsisting among different
castes, tribes, religions or communities, or on any violent act or
crime in order to discourage it.
6. Nothing in sub-clause (f) shall be deemed to prevent the
making of laws to impose reasonable restrictions on any act
which may undermine harmonious relations subsisting among
federal units or be contrary to public health, decent behaviour,
or morality or to confer on the State the exclusive right to
undertake specific industries, businesses or services, or impose
any condition or qualification for engaging in any industry,
trade, profession or occupation.”
Committee Proposed Provision CHRGJ Recommendations
Committee to
Decide the Basis
of Cultural and
Social Solidarity
“Right to Religion:
(1) All persons shall have the freedom of religion as given
below:
a. To accept or not to accept a religion,
b. To profess and practise [sic] religion according to one's own
faith,
c. To disseminate the religion of one's own faith and religious
In keeping with Nepal’s international human rights
obligations, this provision:
Protects the right to freedom of religion.
To further fulfill Nepal’s human rights obligations, this
provision should:
Ensure that the right of religious groups to manage
Right to Religion
Under Article 18 of the ICCPR, Nepal must ensure the right to freedom of religion, including the “freedom to have or to adopt a religion or belief .
. . [and] to manifest his religion or belief in worship, observance, practice and teaching.”176
As with all other rights, the freedom of religion cannot be used to justify encroaching upon the fundamental rights and freedoms of others,
including Dalits’ right to equality and non-discrimination and to practice religion.177 Some restrictions on the right to freedom of religion are
permissible, but only when they “are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights
and freedoms of others.”178
In keeping with Nepal’s obligations under international human rights law, the proposed “Right to Religion” provision in the new Constitution
should:
Protect the right to freedom of religion.
Limit restrictions on the right to freedom of religion to those provided for under international human rights law.
26
belief,
d. To renounce or convert to another religion out of one's
own accord,
e. To open and run religious associations or organizations.
(2) While exercising the freedom of religion mentioned in Sub-
Article (1) (a), (b), (c), (d) and (e), it shall have to be done in a
manner which shall not affect other religions or religious faith,
(3) No one shall be allowed to convert another person from
one religion to another against his or her desire.
(4) Acts contrary to Sub-Articles (2) and (3) shall be
punishable by laws.
(5) Every religious denomination shall have the right to
manage and protect religious places and religious trusts in
accordance with the law by maintaining its independent
existence and religious tolerance.”
and protect religious places does not include a right to
discriminate based on caste or other status.
Committee on the
Protection of the
Rights of
Minorities and
Marginalized
Communities
“Right to Religion:
(1) All persons shall have the freedom of religion as given
below:
a. To accept or not to accept a religion,
b. To profess and practise religion according to one's own
faith,
c. To disseminate the religion of one's own faith and religious
belief,
d. To renounce or convert to another religion out of one's own
accord,
e. To open and run religious associations or organizations.
(2) While exercising the freedom of religion mentioned in Sub-
Article (1) (a), (b), (c), (d) and (e), it shall have to be done in a
manner which shall not affect other religions or religious faith,
(3) No one shall be allowed to convert another person from
one religion to another against his or her desire.a
(4) Acts contrary to Sub-Articles (2) and (3) shall be
punishable.”
In keeping with Nepal’s international human rights
obligations, this provision:
Protects the right to freedom of religion.
To further fulfill Nepal’s human rights obligations, this provisio
should:
Ensure that the right of religious groups to manage
and protect religious places does not include a right
to discriminate based on caste or other status.
Committee on
Fundamental
Rights and
Directive
“Right to Religious Freedom:
1. Every person shall have the freedom to profess, practice
and preserve his or her own religion in accordance with his or
her faith, or to refrain from any religion.
In keeping with Nepal’s international human rights obligations,
this provision:
Protects the right to freedom of religion.
27
Principles Provided that no person shall be entitled to act contrary to
public health, decent behaviour and morality, to indulge in
acitivities of jeopardizing public peace or to convert a person
from one religion to another, and no person shall act or
behave in a manner which may infringe upon religion of
others.
2. Every religious denomination shall have the right to
maintain its independent existence, and for this purpose to
manage and protect its religious places and religious trusts, in
accordance with law.”
To further fulfill Nepal’s human rights obligations, this
provision should:
Ensure that the right of religious groups to manage and
protect religious places does not include a right to
discriminate based on caste or other status.
Limit restrictions on the right to freedom of religion to
the grounds provided for in international human rights
law.
Rights to Justice
Pursuant to the ICCPR, “[e]veryone shall have the right to recognition everywhere as a person before the law.”179 Nepal must ensure equal
protection of the law and equality before the courts and tribunals for all persons.180 In all legal proceedings, everyone is entitled to “a fair and
public hearing by a competent, independent and impartial tribunal established by law.”181 Nepal must also protect all persons’ right to liberty and
security of person and must ensure that no one is arbitrarily arrested or detained.182
Nepal must guarantee certain rights to all detained persons.183 Nepal must ensure that “[a]ll persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person.”184 All detentions must be based on grounds and procedures established
by law and all detainees must be promptly informed of the legal basis for their detention. All detainees must also have access to an independent
and impartial court to challenge their detention and to release and compensation if their detention is deemed unlawful.185 All persons deprived of
their liberty have the right to defend themselves and to be assisted by legal counsel186 and an interpreter, at no cost if necessary.187 All detained
persons have the right to be informed of their rights, including the right to free legal assistance.188
Nepal must guarantee additional rights to all persons who have been charged with a crime, including: the right to be brought promptly before a
judge;189 the right to be presumed innocent until proven guilty;190 the right to be promptly informed of the charges in a language he or she
understands191 and use of an interpreter at no cost during court proceedings;192 the right to be tried in one’s presence and to defend oneself,
including the right to free legal assistance and the right to be informed of the right to free legal counsel;193 the right to examine and produce
witnesses;194 the right not to be compelled to testify against oneself;195 the right to a fair and public trial, by a competent, independent, and impartial
tribunal established by law, without undue delay and within a reasonable time;196 the right to “adequate time and facilities” to prepare a defense;197 a
presumption in favor of release while awaiting trial;198 the right to appeal a criminal conviction to a higher tribunal;199 the right to compensation for
a wrongful conviction;200 and the right not to be tried or punished again for an offense of which one has already been acquitted or convicted.201 In
addition, everyone has the right not to be subjected to retroactive criminal laws or punishments, and to benefit from subsequent reductions in
punishment.202 Special procedures must be developed for juvenile persons accused of a crime, to take into account their age and to emphasize their
rehabilitation.203
In keeping with Nepal’s international human rights obligations, the proposed provision on the “Rights to Justice” in the new Constitution should:
28
Committee Proposed Provision CHRGJ Recommendation
Prohibit all forms of arbitrary arrest and detention and require that all forms of detention be justified by grounds and procedures established
by law and be subject to effective judicial review.
Guarantee that all persons deprived of their liberty have the right to promptly know the basis for their detention; to challenge their
detention before a competent, impartial, and independent court with legal assistance; and to release and compensation in cases of wrongful
detention.
Prohibit imprisonment for the failure to fulfill a contractual obligation under all circumstances.204
Provide that all persons charged with a crime be afforded all of the rights contained in the ICCPR, as listed above.
Committee on
Fundamental
Rights and
Directive
Principles
“Rights Regarding Justice:
(1) No person shall be detained without being informed of the
ground for such an arrest.
(2) The person who is arrested shall have the right to consult a
legal practitioner of his/her choice at the time of the arrest.
The consultation made by such a person with the legal
practitioner and the advice given thereon shall remain
confidential, and such a person shall not be denied the right to
be defended by his/her legal practitioner.
Provided that, this Clause shall not be applicable to the
nonresident Nepalese (NRN) under preventive detention or to
the citizen of an enemy country.
Explanation: For the purpose of this Clause, the term “legal
practitioner” means any person who is authorized by law to
represent any person in any court.
(3) Every person who is arrested shall be produced before a
judicial authority within a period of twenty-four hours after
such arrest, excluding the time necessary from journey from
the place of arrest to such authority, and the arrested person
shall not be detained in custody beyond the said period except
on the order of such authority.
Provided that nothing in this Clause shall apply to preventive
detention of an individual or to a citizen of an enemy state.
(4) No person shall be punished for an act which was not
punishable by law when the act was committed, and no person
shall be subjected to a punishment greater than that prescribed
by the law in force at the time of the offence.
(5) No person accused of any offence shall be assumed to be
In keeping with Nepal’s international human rights
obligations, this provision protects some of the key rights
listed in the ICCPR.
Ultimately, however, this provision fails to comply with
Nepal’s international human rights obligations by failing to
protect several essential rights.
To further fulfill Nepal’s human rights obligation, this
provision must:
Extend these rights to all persons deprived of their
liberty, and not exclude nonresident Nepalis under
preventive detention or “citizen[s] of an enemy
country.” (Clause 2)
Prohibit arbitrary arrest and detention and require
that all deprivations of liberty be based on grounds
and procedures established by law.
Guarantee that all persons deprived of their liberty
have the right to promptly know the basis for their
detention; to challenge their detention before a
competent, impartial, and independent court with
legal assistance; and to release and compensation in
cases of wrongful detention.
Provide that all persons charged with a crime be
afforded all of the rights contained in the ICCPR, as
listed above.
Clarify that the right not to be subjected to
retroactive criminal laws or punishments does not
29
an offender until proven guilty.
(6) No person shall be prosecuted or punished for the same
offence in a court of law more than once.
(7) No person accused of any offence shall be compelled to be
a witness against himself or herself.
(8) Every person undergoing trial shall have the right to be
informed about the proceedings of the trial.
(9) Every person shall be entitled to a fair trial by a fair, free
(independent) and competent court or judicial authority.
(10) Any indigent person shall have the right to free legal aid in
accordance with law.”
apply to international crimes.205
Right Against Preventive Detention
Preventive detention regimes in Nepal and elsewhere are rampant with human rights abuses, including high risks of arbitrary detention, prolonged or
indefinite detention, incommunicado detention, and torture and cruel, inhuman and degrading treatment and punishment.206 Preventive detention has
also been used for political reasons and to suppress freedom of expression and assembly.207 Under international human rights law, preventive
detention may only be used where necessary for reasons of public security and proportionate to the ends sought, and must always be accompanied
by a number of procedural safeguards.208 Preventive detention systems cannot be used to eviscerate the rights of detained persons. The ICCPR
provides that no one shall be subject to arbitrary detention,209 which means that all systems of detention must be premised on grounds and
procedures established by law.210 In particular, international human rights law is clear that all detained persons have the right to effective judicial
review,211 including the right to be promptly informed of the basis for their detention,212 the right to challenge the legality of their detention before
an independent and effective court with the assistance of legal counsel213 and the right to release and compensation for unlawful detention.214
Prolonged preventive detention, without charge and without judicial review, amounts to arbitrary detention, in violation of the ICCPR.215
All detained persons must “be treated with humanity and with respect for the inherent dignity of the human person.”216 This means that persons
detained under preventive detention cannot be “subjected to any hardship or constraint other than that resulting from the deprivation of liberty.”217
In particular, incommunicado detention, including denying a detainee access to his family, violates the right of all detainees to be treated with humanity
and dignity and prolonged incommunicado detention may violate the ICCPR’s prohibition on torture and cruel, inhuman and degrading treatment.218
All detained persons must have the right to communicate with their family and with their legal counsel.219
The proposed “Right Against Preventive Detention” provision in the new Constitution includes a number of exceptions to this right that in effect
would establish a system of preventive detention that could be liberally used and that is devoid of the necessary procedural safeguards. Establishing
such a system jeopardizes Nepal’s commitment to democracy and human rights as reflected elsewhere in proposals for the new Constitution.
CHRGJ strongly urges the CA to reject the inclusion of such a provision in the new Constitution and calls on Nepal to instead forge a strong
criminal justice system that can guarantee both the security of the Nepalese people and their rights.
Should the CA decide to retain this provision, then in keeping with Nepal’s international human rights obligations, the proposed provision on the
30
“Rights Against Preventive Detention” in the new Constitution should:
Prohibit arbitrary arrest and detention and require that all detentions be premised on grounds and procedures established by law.
Limit the use of preventive detention to situations where it is necessary for reasons of public security and proportionate to the ends sought.
Ensure that all detained persons detained have the right to be promptly informed of the reasons for their detention.
Ensure that all persons detained have access to the courts to challenge the legality of their detention with legal assistance and to release and
compensation for wrongful detention. Require that all persons detained be treated with humanity and with respect for their dignity.
Prohibit incommunicado preventive detention in which detainees are denied the right to communicate with their family.
Committee Proposed Provision CHRGJ Recommendation
Committee on
Fundamental
Rights and
Directive
Principles
Right Against Preventive Detention:
“(1) No person shall be held under preventive detention unless
there is sufficient ground to believe in the existence of an
immediate threat to the sovereignty and integrity of, or the law
and order situation in, Nepal.
(2)Except in case of the individual that undermines sovereignty
or integrity of the State of Nepal, seriously jeopardizes the
public peace and law and order by spreading communal riots,
and in case of the citizens of an enemy state, the family
members of other individuals held under preventive detention
shall be informed of their conditions.
(3) If an authority detains a person under preventive detention
contrary to law or in bad faith, the person detained is entitled
to compensation under the law."
This provision fails to comply with Nepal’s international
human rights obligations because it permits the establishment
of a preventive detention system that is not limited to
situations where preventive detention is necessary and
proportionate to achieving public security and because it
does not guarantee protection of:
The right against arbitrary arrest and detention,
allowing preventive detention under broad
circumstances.
The right of all detained persons to challenge the
legality of their detention.
The right of all detained persons to be treated with
humanity and dignity.
The right of all detained persons to communicate
with their family and their legal counsel.
Right Against Torture
Dalits are particularly vulnerable to torture and other forms of cruel, inhuman, or degrading (CID) treatment or punishment in both custodial and
non-custodial settings. As a State Party to the ICCPR and pursuant to its accession to CAT, Nepal is obligated to prevent, prohibit, and punish acts
of torture and CID treatment or punishment and to ensure that victims of torture and CID treatment or punishment can obtain redress.220 The
prohibition against torture has been universally recognized as a customary international law norm and as a jus cogens norm applicable in times of war
and peace, from which no derogation is permitted.221 All people, without discrimination, have a right to be free from torture and CID treatment or
punishment, regardless of whether it is committed by State or private actors.222 Importantly for Dalits, CAT defines torture and CID treatment or
punishment to include severe pain and suffering that is inflicted for a discriminatory reason.223 CAT also provides that statements given as a result
of torture cannot be used in courts of law.224
In keeping with Nepal’s obligations under international human rights law, the proposed “Right Against Torture” provision in the new Constitution
should:
31
Committee Proposed Provision CHRGJ Recommendations
Prohibit torture and CID treatment or punishment in all situations, not only those of detention or law enforcement.225
Provide that complicity with, or participation in, torture or CID treatment or punishment are also punishable.
Clarify that every victim of torture or CID treatment or punishment is entitled to: file a complaint; have his or her case promptly and
impartially examined by a competent authority; be protected from intimidation and ill-treatment; and “has an enforceable right to fair and
adequate compensation including the means for as full rehabilitation as possible.”226
Committee on
Fundamental
Rights and
Directive
Principles
Right Against Torture:
1. No person who is detained during investigation, probe or
enquiry or for trial or for any other reason, shall be subjected
to physical or mental torture, or be treated in a cruel, inhuman
or degrading manner.
2. Any such an act pursuant to clause (1) shall be punishable by
law, and any person victimized by such a treatment shall have a
right to proper compensation.
In order to strengthen Nepal’s commitment to international
human rights law, this provision should:
Define torture and CID treatment or punishment as
they are defined in international human rights law, to
include acts occurring outside custodial detention.
Explicitly provide that complicity or participation in
torture or CID treatment or punishment are also
punishable by law.
Protect the rights of victims of torture and CID
treatment or punishment to complain, have their
cases dealt with promptly, be protected from
intimidation and ill-treatment, and receive fair and
adequate compensation.
Right to Communication
The ICCPR guarantees the right to freedom of expression, which includes the “freedom to seek, receive and impart information and ideas” in
written or oral form and in the media of one’s choosing.227 The ICCPR also recognizes that this right carries with it “special duties and
responsibilities.”228 This right may therefore be limited when such restrictions are provided by law and are necessary to ensure the rights or
reputations of others or the protection of national security, public order, health, or morals229 – although no such restriction can put in jeopardy the
right itself.”230 International human rights law also requires that “advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence” be prohibited by law; this includes incitements to discrimination, hostility, or violence on the basis of caste.231
In keeping with Nepal’s obligations under international human rights law, the new Constitution should:
Protect the right to freedom of expression.
Require that any restrictions on the right to freedom of expression must be provided in law and necessary for the respect of the rights or
reputations of others or for the protection of national security or of public order (ordre public), or of public health or morals.232
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental
“Rights Regarding Mass Communications:
1. There shall be no prior censorship of publication,
To further fulfill Nepal’s commitment to international
human rights law, this provision should:
32
Rights and
Directive
Principles
transmission (broadcasting) or information flow or printing of
any news item, editorial, article, feature or any other reading,
audio, audiovisual materials by any means including electronic
publication, transmission (broadcasting) and the press.
Provided that, nothing shall be deemed to prevent the making
of laws to impose reasonable restrictions on any act which may
undermine nationality, sovereignty or integrity or which may
jeopardize the harmonious relations subsisting among federal
units or the harmonious relations subsisting among the peoples
of different castes, tribes or communities, an act of treason, any
act that may harm the social prestige of an individual through
publication or transmission of false (fake) materials, or that
leads to a contempt of court, or to discourage crimes or an act
that may be contrary to public health, decent behaviour, or
morality and to discourage untouchability and racial and gender
discrimination.2. There shall be no closure, seizure or
cancellation of registration of radio, television, online or any
other types of digital or electronic, print or other media or
equipment of communications on account of publication and
transmission (broadcasting) or printing of any materials
through the medium of audio, audiovisual or electronic
equipment.3. There shall be no closure, seizure or cancellation
of registration of any newspaper, periodical (magazine) or press
on account of printing or publishing any news item, article,
editorial, feature, information or any other materials. Such act
will be culpable in accordance with law and the victim of such
act shall have a right to receive proper compensation.4. Except
in accordance with law, no press, electronic transmission and
telephone and other means of communications shall be
obstructed.”
Clearly require that any restrictions on the right to
freedom of expression must be provided by law and
are necessary to ensure the respect of the rights or
reputations of others or the protection of national
security, public order, health, or morals.
Right to Privacy
The ICCPR provides that “No one shall be subjected to arbitrary or unlawful interferences with his privacy, family, or correspondence, nor to
unlawful attacks on his honour and reputation.”233 The prohibition on “arbitrary” interferences with privacy extends to interferences provided for
under the law—but which are inconsistent with the aims and objectives of the ICCPR or are otherwise unreasonable.234 The ICCPR further
requires that “Everyone has the right to the protection of the law against such interference or attacks.”235 Thus, Nepal must guarantee the right to
privacy both with respect to unlawful interferences and with respect to arbitrary interferences and must protect against interferences and attacks on
33
Right Regarding Family
The right of men and women of marriageable age to freely marry a person of one’s choosing is protected under a number of international human
rights treaties.236 Included in this right is a prohibition against marriage without free and full consent of each spouse.237 As a State Party to ICERD,
Nepal must also guarantee without discrimination, the right to marriage and choice of spouse.238 This right is of particular significance to Dalits, as
inter-caste marriages have been traditionally forbidden and inter-caste couples have faced severe punishment. Under the ICCPR, States Parties also
have an obligation to take appropriate steps to ensure equality between men and women regarding their rights and responsibilities as to marriage,
during marriage, and at its dissolution.239
In keeping with Nepal’s obligations under international human rights law, the proposed provision on the “Right Regarding Family” in the new
Constitution should:
Protect the right of men and women of marriageable age to freely marry a person of their choosing, without discrimination.
Ensure equality of rights and responsibilities of spouses as to marriage, during marriage, and at its dissolution.
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental
Rights and
Directive
Principles
“Rights Regarding Family:
1. No one shall be allowed to have more than one spouse.
2. Every person shall have the freedom to marry and divorce in
accordance with law.
3. No marriage shall be held against the wishes of the wedding
parties or their full and independent consent.
4. The couple shall have the right to property and in family
affairs.
5. It shall be the common right and responsibility of the
In keeping with Nepal’s international human rights
obligations, this provision:
Protects the right of all persons to freely marry.
Prohibits marriage without the full and independent
consent of the intending spouses.
To further fulfill Nepal’s human rights obligations, this
provision should:
Clarify that the right to freely marry a person of one’s
personal honor by State authorities as well as private actors.
In light of Nepal’s international human rights obligations, the proposed provision on the “Right to Privacy” in the new Constitution should:
Prohibit arbitrary and unlawful interferences with a person’s privacy, family or correspondence and attacks upon a person’s honor and
reputation.
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental
Rights and
Directive
Principles
“Right to Privacy:
Except in circumstances provided by law, privacy in relation to
the person, and to his or her residence, documents, records,
statistics and correspondence, and his or her reputation are
inviolable.”
To further fulfill Nepal’s international human rights
obligations, this provision should:
Include a protection against “arbitrary” interferences
with privacy, to clarify that even interferences
provided for by law will be prohibited if they are
arbitrary.
34
parents for the nurturing, care and all round development of
the children whereas it shall be the common right and
responsibility of every child to respect and nurture their parents
and guardians.
6. The acts contrary to Clause (1) and Clause (3) shall be
punishable in accordance with law.”
choosing applies to men and women of marriageable
age.
Ensure equality of both spouses at the time of
marriage, during the marriage, and at a marriage’s
dissolution.
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
As a State Party, Nepal is obligated to progressively realize the rights contained in the International Covenant on Economic, Social and Cultural
Rights (ICESCR).240 In particular, the ICESCR requires Nepal to guarantee “the right of everyone to an adequate standard of living for himself and
his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”241 The proposals for the new
Constitution that were reviewed for this Chart protect many of the important economic, social and cultural rights provided for in the ICESCR. To
better comply with Nepal’s international human rights obligations, however, the Constitution should also include the right to an adequate standard
of living, the right to clothing, and the right to the continuous improvement of living conditions—which are lacking from the current proposals.
While the ICESCR allows for “progressive realization” of the rights contained therein, there are two obligations that apply fully and immediately to
all economic, social and cultural rights irrespective of the availability of resources: the obligation to ensure non-discrimination and the obligation “to
take steps” toward the realization of these rights.242 With respect to non-citizens, the CERD Committee has called upon States to “[r]emove
obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment,
and health.”243 In addition, Nepal cannot distinguish between citizens and non-citizens with respect to social and cultural rights.244 While the
ICESCR allows some latitude for developing countries to determine to what extent they will guarantee economic rights to non-nationals, this
provision must be narrowly construed as a limited exception to the general principle that human rights apply to all persons, and Nepal must strive to
ensure the broadest possible enjoyment of economic rights to all persons.245
To achieve substantive equality and eliminate discrimination with respect to economic, social and cultural rights, Nepal may use “special
measures.”246 Nepal’s Constitution should also recognize that many economic, social and cultural rights are interdependent and indivisible; for
example, the UN Committee on Economic, Social and Cultural Rights (ESCR Committee) has explained that the right to water is a prerequisite to
the fulfillment of many other rights and is inextricably intertwined with several other rights, such as the right to health.247
Right Regarding Environment and Health
As a State Party to the ICESCR, Nepal recognizes the “right of everyone to the enjoyment of the highest attainable standard of physical and mental
health.”248 This right includes the right of everyone, without discrimination, to the equal enjoyment of the right to public health and medical care,
including access without discrimination to health facilities.249 Nepal must also ensure access without discrimination to the “underlying determinants
of health, such as…safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and
35
environmental conditions, and access to health-related education and information.”250 Under the Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW), Nepal is further obligated to ensure women “appropriate services in connection with pregnancy,
confinement, and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”251
The ICESCR additionally directs Nepal to take steps to improve all aspects of environmental and industrial hygiene.252 Specifically, Nepal must
provide for “preventative measures in respect of occupational accidents and diseases”; ensure “an adequate supply of safe and potable water and
basic sanitation”; prevent and reduce exposure to harmful substances, such as harmful chemicals; and minimize, “so far as is reasonably practicable,
the causes of health hazards inherent in the working environment.”253
Protection of the right to health and a healthy environment are especially significant for Dalits who are often forced to work in unhealthy
environments and are denied access to health services and to the underlying determinants of health.
In keeping with Nepal’s obligations under international human rights law, the proposed provision on the “Right Regarding Environment and
Health” in the new Constitution should:
Guarantee the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Protect the underlying determinants of health, such as safe and potable water, adequate health care, and healthy occupational and
environmental conditions.
Ensure the right of women to appropriate health services during and after pregnancy.
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental
Rights and
Directive
Principles
“Right Regarding Environment:
1. Every person shall have the right to live in a healthy, clean
and sustainable environment.
2. Every person shall have the right to conditioning to
safeguard himself or herself from the ill effects of climate
change. 3. The victim of environmental pollution or
degradation shall have the right to compensation in accordance
to law.”
This provision takes appropriate steps to support the right to
health by:
Protecting the right of all persons to live in a healthy,
clean, and sustainable environment.
Committee on
Fundamental
Rights and
Directive
Principles
“Rights Regarding Health:
1. Every citizen shall have the right to free basic health services
and no person shall be deprived of emergency health services.
2. Every person shall have the right to reproductive health.
3. Every person shall have the right to informed health
services.
4. Every citizen shall have the right to equal access to health
services.
5. Every citizen shall have the right to an access to clean (pure)
This provision takes appropriate steps to support the right to
health by:
Providing for equal access to health services.
Protecting the right to water.
Protecting some of underlying determinants of the
right to health, such as access to clean water and
sanitation.
To further fulfill Nepal’s commitment to human rights, this
36
drinking water and sanitation (cleanliness).” provision should:
Guarantee the right of everyone to the enjoyment of
the highest attainable standard of physical and
mental health.
Clarify that women are entitled to appropriate health
services during and after pregnancy.
Education and Cultural Rights
As a State Party to the ICESCR, Nepal must take concrete steps to ensure that everyone has the right to education.254 Nepal has an obligation to
ensure free primary education and to progressively introduce free higher education for all.255 Nepal must also ensure that fundamental education is
“encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education.”256
Consistent with Nepal’s obligations to ensure equality and non-discrimination, access to all education must be non-discriminatory.257 To ensure
equal access to education in fact, and not merely in law, Nepal should introduce special measures to ensure educational equality for Dalits, women,
and other marginalized groups.258 The right to education is particularly important to Dalits, women, and other marginalized groups who have
historically faced significant obstacles to attaining an education. Education is also an essential tool for these groups to assert, safeguard, and further
other human rights.
Under the ICESCR, everyone has the right to take part in cultural life.259 In addition, every individual has the right to “benefit from the protection
of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”260 Under the ICCPR,
persons belonging to ethnic, religious, or linguistic minorities have the right to enjoy their own culture, profess and practice their own religion, and
use their own language.261 As with all other human rights, the right to take part in cultural life cannot be interpreted so as to infringe on the
individual rights and freedoms of others.262
In keeping with Nepal’s obligations under international human rights law, the proposed provision on “Education and Cultural Rights” in the new
Constitution should:
Provide for free and compulsory primary education for all.
Provide for the progressive introduction of free secondary and higher education available and accessible for all.
Protect the right of all persons to take part in cultural life.
Guarantee the right of all persons to the protection of the moral and material interests resulting from their artistic, literary, and scientific
creations.
Committee Proposed Provision CHRGJ Recommendations
Committee on the
Protection of the
Rights of Minorities
and Marginalized
Communities
“Cultural and Educational Rights:
(1) Every person, family or community residing in Nepal
shall have the right to protect, promote and use his or her
language, script and culture, customs, traditions, rituals and
practices that are inconsistent with universal norms and
In keeping with Nepal’s obligations under international
human rights law, this provision:
Protects the right of all persons to take part in
cultural life, while ensuring that this right is not used
to justify encroachments on the rights of others.
37
values of human rights. Provided that this shall not be
deemed to have prevented from making laws for imposing
reasonable restrictions on acts which are likely to disrupt
public law and order or incite people to commit crimes or
violent acts or undermine morality or jeopardize
harmonious relations subsisting between communities or
groups including different castes, tribes, religions, language,
region, etc.
(2) Every citizen shall have the right to receive education up
to high level free of cost.
(3) It shall be the duty of the State to ensure the right of all
religious, cultural and linguistic communities to open and
run educational institutions as desired by them. Provided
that this shall not be deemed to have prevented from
making laws for imposing reasonable restrictions on acts
that are likely to disrupt public law and order or incite to
commit crimes or violent acts or undermine morality or
jeopardize harmonious relations subsisting between
communities or groups including different castes, tribes,
religions, language, region, etc.
(4) No educational institutions opened and run by a
particular religious, cultural or linguistic community shall be
deprived of receiving assistance due to be received from the
State.
(5) No person shall be deprived of the opportunity to get
enrolled in or receive higher education from a public
educational institution just by reason of having received
education from an educational institution opened or run by
a particular religious, cultural or linguistic community.
(6) No person shall, on grounds of being, indigenous
peoples, Tarai people, Muslims, Madheshi, religion or of
sex, color, language, region or culture, be deprived of the
opportunity to get enrolled in or receive education from
educational institutions run by or receiving assistance from
the State.”
Provides for free education for all, up to the higher
level.
Prohibits discrimination in access to education.
In order to strengthen Nepal’s commitment to international
human rights law, this provision should:
Include caste in the list of grounds for which limits
on access to education is prohibited (Clause 6) and
make the list non-exhaustive.
Replace broad language such as “harmonious
relations,” which could be interpreted to allow the
perpetuation of caste discrimination, with a
provision emphasizing that cultural rights, like all
other rights, may not be invoked to justify infringing
upon the rights of others.
Committee on
Fundamental Rights
“Rights Regarding Education:
1. Every citizen shall have the right to access over basic
In keeping with Nepal’s obligations under international
human rights law, this provision:
38
and Directive
Principles
education.
2. Primary education shall be compulsory and free of cost.
Every citizen shall have the right to obtain free education
up to secondary level.
3. The citizens of destitute class shall have the right to free
higher education as prescribed in the law.
4. Every Nepalese community inhabiting Nepal shall have
the right to run and operate schools and academic
institutions in order to provide education in mother
tongue.”
Provides for free and compulsory primary education
and free secondary education.
In keeping with Nepal’s international human rights
obligations, this provision should:
Refrain from using qualifying language such as “as
prescribed in the law” (Clause 3).
Provide for the progressive introduction of free
higher education for all.
Committee on
Fundamental Rights
and Directive
Principles
“Rights Regarding Language and Culture:
1. Every person and community shall have the right to use
their own language
2. Every person and community shall have the right to
participate in the cultural life of their community.
3. Every Nepalese community inhabiting Nepal shall have
the right to protect and promote their language, script,
culture, cultural civilization and heritage.
4. Every individual shall have the right to create arts and
literature, develop them, and protect, in accordance to law,
their intellectual heritage, and reap gains thereof.”
In keeping with Nepal’s obligations under international
human rights law, this provision:
Protects the right of all persons to take part in
cultural life
Ensures the right of all individuals to the protection
of the moral and material interests resulting from
their artistic and literary creations.
Employment and Exploitation
Systemic work-related abuses are a core feature of caste-based discrimination. The new Constitution must take steps to end the segregation and
exploitation of Dalits in employment.
As a State Party to the ICESCR, Nepal is obligated to protect the right to work, which includes the freedom to choose one’s work.263 Nepal must
also protect the enjoyment of just and favorable work conditions, which includes fair wages and equal remuneration for equal work without
distinction of any kind, a decent living, and safe and healthy working conditions.264 Both the ICCPR and ICESCR also provide for the right of
everyone to form and join trade unions and the ICESCR further provides for the right of trade unions to function freely.265 No restrictions may be
placed on this right, except those which are prescribed by law and necessary in a democratic society to protect the rights and freedoms of others or
in the interests of national security or public order.266
The ICCPR also prohibits slavery in all its forms and prohibits other forms of forced or compulsory labor.267 The prohibition on forced or
compulsory labor does not preclude the performance of hard labor where such labor is prescribed as punishment by a competent court.268 Under
the ICCPR, the term “forced or compulsory labor” does not include military service or national service for conscientious objectors, services during
39
emergencies, and other work or service that is part of normal civic obligations.269
In keeping with Nepal’s obligations under international human rights law, the proposed provision on the “Right Against Exploitation” in the new
Constitution should:
Prohibit slavery in all its forms.
Prohibit other forms of forced or compulsory labor.
In keeping with Nepal’s obligations under international human rights law the proposed provisions on rights regarding labor and employment in the
new Constitution should:
Protect the right of all persons to work.
Explicitly include the right to freely choose or accept employment.
Specify that workers are entitled to just and favorable work conditions, including fair wages, equal remuneration for equal work, and safe and
healthy working conditions.
Protect the right of all persons to form and join trade unions.
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental Rights
and Directive
Principles
“Right Against Exploitation:
1. Every person shall have the right against exploitation.
2. No person shall be exploited in the name of religion,
custom, tradition and practice, or in any other way
3. No person shall be subjected to human trafficking,
slavery or bonded labour. Such an act shall be punishable in
accordance with the law and the victim shall have the right
to receive proper compensation from the victimizer.
4. No person shall be subjected to forced labour. Provided
that nothing in this Clause shall prevent the enactment of a
law requiring citizens to be engaged in compulsory service
for public purposes.”
In keeping with Nepal’s obligations under international
human rights law, this provision:
Explicitly prohibits exploitation in the name of
religion, custom, tradition and practice, and makes
this list non-exhaustive.
Prohibits slavery, bonded and forced labor, and
human trafficking.
Committee on
Fundamental Rights
and Directive
Principles
“Rights Regarding Employment:
1. Every citizen shall have the right to employment. The
terms and conditions of the employment shall be as
prescribed by the law. Every person shall have the right to
conditioning to safeguard himself or herself from the ill
effects of climate change.
2. Every citizen shall have the right to select / choose
employment.
3. Every unemployed citizen shall have the right to receive
While this provision recognizes the right to work and the
right to choose one’s work, in keeping with Nepal’s
international human rights obligation, this provision should:
Refrain from using qualifying language such as “as
prescribed by the law.”
40
allowance in accordance to law.”
Committee on
Fundamental Rights
and Directive
Principles
“Rights Regarding Labour:
1. Every worker shall have the right to proper work
practices.
2. Every worker shall have the right to proper wages,
conveniences and social security.
3. Every worker shall have the right to form trade unions,
participate in them and engage in collective bargaining and
strikes in accordance with law.”
This provision recognizes the right to form and participate
in trade unions and the right to proper work practice and
proper wages—which is interpreted to mean just and
favorable work conditions, including fair wages, equal
remuneration for equal work, and safe and healthy working
conditions. In keeping with Nepal’s human rights
obligations, this provision should also:
Refrain from using qualifying language such as “in
accordance with law.”
Right to Social Security
As a State Party to the ICESCR, Nepal is obligated to recognize the right of everyone to adequate social security, including social insurance.270 The
ESCR Committee has clarified that, to ensure non-discrimination, State Parties must take effective measures, “within their maximum available
resources, to fully realize the right of all persons without any discrimination to social security, including social insurance.”271
In keeping with Nepal’s obligations under international human rights law, the proposed provision on the “Right to Social Security” in the new
Constitution should:
Guarantee the right to adequate social security, including social insurance to everyone, without discrimination, while paying particular
attention to marginalized groups such as women and Dalits.
Committee Proposed Provision CHRGJ Recommendations
Committee to Decide
the Basis of Cultural
and Social Solidarity
“Right to social security:
Single women, the elderly, people with disabilities,
physically impaired, helpless citizens and the tribes that face
the threat of extinction shall have the right to social security
according to the provisions made in law.”
In keeping with Nepal’s human rights obligations, this
provision should:
Guarantee the right to adequate social security
including social insurance to everyone, without
discrimination, while paying particular attention to
marginalized groups such as women and Dalits.
Avoid caveats such as “according to the provisions
made in law,” which could be used to limit or
weaken the right.
Committee on
Fundamental Rights
and Directive
Principles
“Right Regarding Social Security:
Destitute class, incapacitated and helpless people, single and
helpless women, disabled people, children, senior citizens,
people who cannot take care of themselves, and citizens of
endangered tribes shall have the right to social security as
prescribed by the law.”
In keeping with Nepal’s human rights obligations, this
provision should:
Guarantee the right to adequate social security
including social insurance to everyone, without
discrimination, while paying particular attention to
marginalized groups such as women and Dalits.
41
Refrain from using qualifying language such as “as
prescribed by the law.”
Right to Social Justice
As discussed above, international human rights law requires that Nepal take special measures to ensure substantive equality for women and for
members of marginalized groups.272 Special measures may be used to address “persistent or structural disparities and de facto inequalities resulting
from the circumstances of history that continue to deny to vulnerable groups and individuals the advantages essential for the full development of the
human personality”273 and to accelerate the achievement of de facto equality between women and men.274
Special measures “can reach into all fields of human rights deprivation”275 and “should include measures to achieve appropriate representation in
educational institutions, housing, political parties, parliaments and employment, especially in the judiciary, police, army and other civil services,
which in some cases might involve electoral reforms, land reforms and campaigns for equal participation.”276
As discussed above, special measures must in all cases be carried out on the basis of accurate and disaggregated data.277 Proposals for proportional
representation must additionally be based on an accurate and disaggregated census.
In keeping with Nepal’s obligations under international human rights law, the proposed provision on the “Right to Social Justice” in the new
Constitution should:
Provide for special measures that are designed to secure to women and to disadvantaged groups the full and equal enjoyment of human
rights and freedoms.
Secure an entitlement to land tenure or comparable redress in cases where land tenure has been compromised for particular groups by
previous discrimination.278
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental Rights
and Directive
Principles
“Rights Regarding Social Justice:
1. Women, dalits, Madhesis, indigenous tribes (adiwasis
janjatis), minorities and marginalized, Muslims, gender and
sexual minority community, disabled people, youths,
backward class, farmers and workers and oppressed groups,
who are socially backward, shall have the right to
participate in state structures on the basis of the principles
of proportionate inclusion.
2. The economically destitute citizens shall be given priority
while making provisions pursuant to Clause (1).
3. Destitute class, disabled people and citizens of
endangered communities shall have the right to get special
privileges in education, health, accommodation,
In keeping with Nepal’s obligations under international
human rights law, this provision:
Provides for special measures in a number of key
areas, including state structures, education, and
employment, in order to help secure substantive
equality for women and for members of historically
marginalized groups.
In order to strengthen its commitment to international
human rights law, this provision should:
Provide for an entitlement to land tenure or
comparable redress in cases where land tenure has
been compromised for particular groups by previous
42
employment, food and social security for their protection,
uplifting, empowerment and development, and for reaping
professional gains thereof in accordance with law.
4. Every farmer shall have the right to land for farming
activity, to selection and protection of local seeds and
saplings and agricultural species which are used and
adopted in a traditional manner, to access to proper cost
and market of agricultural output and agricultural
production, and to special privileges for their
empowerment and development, and to benefits thereof.”
discrimination.
Right to Food
The ICESCR provides that everyone has the right to “adequate food,”279 including the fundamental right to be free from hunger and to have
sustainable access to food in a quantity and quality sufficient to satisfy one’s dietary and cultural needs.280 The ESCR Committee has recommended
that Nepal take urgent steps to ensure food security, particularly for those who belong to the most disadvantaged and marginalized groups.281 Nepal
must remove obstacles that prevent non-citizens’ enjoyment of the right to food.282
In keeping with Nepal’s obligations under international human rights law, the proposed “Right to Food” provision of the new Constitution should:
Include the right to “adequate food” for all.
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental Rights
and Directive
Principles
“Right to food:
(1) Every person shall have the right to food.
(2) Every citizen shall have the right to protect himself or
herself from the vulnerable condition of life owing to the
scarcity of food (provisions).
(3) Every citizen shall have the right to food sovereignty in
accordance with law.”
In keeping with Nepal’s obligations under international
human rights law, this provision:
Recognizes the right to food as fundamental.
To further fulfill Nepal’s international human rights
obligations, this provision should:
Clarify that the right to food is a right to “adequate”
food.
Right to Housing
As a State Party to the ICESCR, Nepal is obligated to take steps to ensure the right to adequate housing.283 This right includes “adequate privacy,
adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and
basic facilities - all at a reasonable cost.”284 This right also includes access to “safe drinking water, energy for cooking, heating and lighting,
sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services.”285 Like all rights, this right must be
provided in a manner that is non-discriminatory. In addition, the ICERD specifically prohibits housing discrimination and residential segregation
based on caste.286
43
WOMEN’S RIGHTS
Nepal is obligated to take all appropriate measures to eradicate discrimination against women and to take special measures to ensure substantive
equality for women.287 These obligations extend to women’s participation in politics,288 access to education,289 equality in employment,290 and access
to health care291 and economic and social benefits.292 CEDAW affirms that women’s enjoyment of their fundamental rights cannot be restricted on
the basis of culture and tradition293 and requires that Nepal give special attention to the particular challenges and forms of discrimination faced by
rural women.294 In addition, Nepal should consider and take measures to address the multiple forms of discrimination endured by women who are
members of marginalized groups, such as Dalits.295
In keeping with Nepal’s obligations under international human rights law, the proposed “Women’s Rights” provision in the new Constitution
should:
Prohibit discrimination and ensure equality on the basis of gender.
Provide for special measures to help secure substantive equality and the full enjoyment of human rights for women, paying particular
attention to women who belong to marginalized groups and endure multiple forms of discrimination.
Provide for the adoption of all appropriate measures to modify the social and cultural patterns of conduct of men and women in order to
eliminate prejudices, practices, and stereotypes based on the idea that one sex is inferior or superior to the other.296
Include specific rights concerning family relations, including the equal rights of men and women with respect to entry into marriage,
dissolution of marriage, parental rights and responsibilities, family planning, relations with children, and property and financial assets.
In recognition of Nepal’s obligations under international human rights law, the proposed “Right to Housing” provision of the new Constitution
should:
Ensure the right to adequate housing.
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental Rights
and Directive
Principles
“Rights Regarding Accommodation:
(1) Every citizen shall have the right to an access to proper
accommodation.
(2) Except in accordance with law or ordered by the court,
no person shall be evacuated from his or her habitation,”
In keeping with Nepal’s obligations under international
human right law, this provision:
Ensures the right to adequate housing.
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental Rights
and Directive
Principles
“Rights Regarding Women:
(1) Every woman shall have equal ancestral right without any
gender discrimination.
(2) There shall be no gender discrimination against women, in
any form.
(3) Every woman shall have the right regarding reproduction.
In keeping with Nepal’s human rights obligations, this
provision:
Prohibits discrimination on the basis of gender.
Provides for special measures to help secure
substantive equality and the full enjoyment of
human rights for women.
44
4) No physical, mental, sexual, psychological or other form of
violence or exploitation shall be inflicted on any woman on the
basis of religious, social, cultural tradition, custom or any other
grounds, and such an act shall be punishable by law and the
victim woman shall have the right to receive proper
compensation.
(5) Every woman shall have the right to proportionate
participation in all agencies of the state mechanism on the basis
of inclusiveness.
(6) Every woman shall have the right to special opportunity in
education, health, employment and social security on the basis
of positive discrimination.”
To further fulfill Nepal’s commitment to human rights, this
provision should:
Provide for women’s right to equality (in addition to
their right to non-discrimination).
Include specific rights concerning family relations,
including the equal rights of men and women with
respect to entry into marriage, dissolution of
marriage, parental rights and responsibilities, family
planning, relations with children, and property and
financial assets.
Ensure that special measures pay particular attention
to women who are members of marginalized
communities, such as Dalits, and that all special
measures are enacted on the basis of accurate and
disaggregated data.297
Add a provision requiring adoption of all
appropriate measures to modify the social and
cultural patterns of conduct of men and women in
order to eliminate prejudices, practices, and
stereotypes based on the idea that one sex is inferior
or superior to the other.
CHILDREN’S RIGHTS
As a State Party to the Convention on the Rights of the Child (CRC), Nepal is obligated to protect the rights of children, without discrimination, and
to protect children from discrimination based on the status of their parents.298 The CRC requires that States use the best interests of the child as the
primary consideration in all State actions concerning children.299 The CRC further requires that children “be protected from economic exploitation
and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child’s health or
physical, mental, spiritual, moral or social development.”300 The CRC also protects children’s rights to a name and a nationality, an adequate
standard of living, health, and freedom from sexual exploitation.301 Under the Optional Protocol to the CRC on the involvement of children in
armed conflict, which Nepal has ratified, Nepal is required to take all feasible measures to prevent children from participating in armed conflict302
and to promote the physical and psychological recovery and social reintegration of children affected by armed conflict.303 Nepal should recognize
and take measures to address the fact that Dalit children are particularly vulnerable to violations of their rights.
In keeping with Nepal’s obligations under international human rights law, the proposed “Children’s Rights” provision of the new Constitution
should:
Protect children from performing any work or services that place children’s well-being, physical or mental health, or spiritual, moral or social
45
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental
Rights and
Directive
Principles
“Rights Regarding Children:
(1) Every child shall have the right to his or her name along
with his or her identity and registration of his or her birth.
(2) Every child shall have the right to education, health, be
nurtured, to proper care, sports, entertainment and personality
development from his or her family and state.
(3) Every child shall have the right to Preliminary child
development along with proper care.
(4) Every child shall have the right to receive education in his
or her mother tongue.
(5) No child shall be employed in factories, mines or in any
other hazardous work.
(6) No child shall be subjected to child marriage, illegal
trafficking and abduction or hostage.
(7) No child shall be recruited or used in army, police or
armed conflict or group, or be subjected to maltreatment,
negligence through any medium or in any form in the name of
cultural or religious practice, or to physical, mental, sexual or
other types of exploitation or inappropriate use.
(8) No child shall be tortured at home, school or any other
place and in any condition, either physically, mentally or in any
other forms.
(9) Every child shall have the right to child-friendly justice.
(10) Helpless, orphaned or mentally retarded, disable children,
children who are victims of conflict or displaced and children
at risk shall have the right to receive special protection and
privileges from the State to ensure their secure future.
(11) The acts pursuant to Clauses (5), (6), (7) and (8) shall be
punishable in accordance with law and children who are
victims of such acts shall have the right to receive proper
compensation from the victimizer.”
In keeping with Nepal’s international human rights
obligations, this provision broadly protects the rights of
children in many fundamental ways.
To further fulfill Nepal’s commitment to human rights, this
provision should also:
Protect children from performing any work or services
that place children’s well-being, physical or mental
health, or spiritual, moral, or social development at
risk.
Affirm that the best interests of the child is the
primary consideration in all actions concerning the
rights of children.
Affirm that children have a voice in all matters
affecting them in all spheres of society, particularly in
the family, in school, and in their communities.
development at risk.
Affirm that the best interests of the child is the primary consideration in all actions concerning the rights of children.
Affirm that children have a voice in all matters affecting them in all spheres of society, particularly in the family, in school, and in their
communities.304
46
IMPLEMENTATION OF FUNDAMENTAL RIGHTS
International human rights law requires that Nepal respect, protect, and fulfill international human rights both in law and in practice. Without
strong enforcement mechanisms, constitutional rights will exist only on paper. In recognition of the fact that a right without a remedy is
meaningless, the international human rights treaties to which Nepal is a party provide that there must be adequate State mechanisms by which
individuals can seek redress for violations of their rights.305
In keeping with Nepal’s obligations under international human rights law, the proposed “Implementation of Fundamental Rights” provision of the
new Constitution should:
Clearly state that the Government has an obligation to respect, protect, and fulfill fundamental rights.
Provide that this obligation is binding on “[a]ll branches of government (executive, legislative and judicial), and other public or governmental
authorities, at whatever level - national, regional or local.”306
Provide that all individuals have the right to petition competent and impartial tribunals to have a law declared unconstitutional and to seek
redress and compensation if their fundamental rights have been violated.
Committee Proposed Provision CHRGJ Recommendations
Committee on
Fundamental
Rights and
Directive
Principles
“Rights Regarding Implementation of Fundamental
Rights and Constitutional Treatment:
(1) The State shall make appropriate provisions for the
implementation of the rights provisioned in this Part, such as
rights regarding education, rights regarding health, rights
regarding employment, rights regarding accommodation,
rights regarding food, rights regarding social justice and rights
regarding social security.
(2) The State shall make legal provisions, within two years as
deemed necessary, for the implementation of the rights
provided in this Part.
(3) The right to take measures in accordance with the
documentation in Article … (Article related with the
jurisdiction of federal supreme court) and Article … (Article
related with the jurisdiction of regional/state level
supreme/high court) for the exercise of the rights provided by
this Part is reserved.”
This provision fails to comply with Nepal’s human rights
obligations. In keeping with Nepal’s human rights obligations,
the new Constitution must:
Clarify that all fundamental rights, including
economic, social and cultural rights, are fully
justiciable.
Refrain from using language that allows the
government to delay implementing rights guaranteed
in the Constitution (as in clause 2).
Provide a right to an effective remedy by clearly
providing that all individuals have the right to
petition an independent and competent tribunal to
enforce their rights.
47
DIRECTIVE PRINCIPLES, POLICIES AND RESPONSIBILITIES OF THE STATE
In keeping with Nepal’s obligations under international human rights law, the proposed “Directive Principles, Policies, and Responsibilities of the
State” section of the new Constitution should:
Make it clear that any fundamental rights mentioned in this section are obligatory human rights and fully justiciable.
Ensure that all state responsibilities and policies are created and administered without discrimination of any kind.
EMERGENCY POWERS
International human rights law strictly limits the circumstances in which a state of emergency can be declared and provides that a number of rights
must be protected even in these times. Past state of emergency declarations have dramatically escalated human rights abuses in Nepal, particularly
against Dalits and other marginalized communities.
Pursuant to its obligations under the ICCPR, Nepal may only declare a state of emergency in response to a situation that “threatens the life of the
nation,”307 which is to say, only in response to situations of the direst circumstances and not every disturbance or catastrophe.308 Both the
declaration of the state of emergency and any actions taken as a result thereof must reflect the principle of proportionality and must be carefully
justified by the State.309 Nepal may only derogate from its international human rights obligations during public emergencies to the extent strictly
required by the exigencies of the situation and so long as measures taken do not involve discrimination.310
Even in a state of emergency, Nepal must at a minimum guarantee a number of non-derogable rights, as listed below.
In keeping with Nepal’s obligations under international human rights law, the proposed provision on “Emergency Powers” in the new Constitution
should:
Strictly define the circumstances in which the government can declare a state of emergency.
Indicate that any derogation measures must be limited to the extent strictly required by the exigencies of the situation.
Ensure that any measures enacted during a state of emergency do not involve discrimination on any ground.
Guarantee that, at a minimum, the following non-derogable rights listed in ICCPR Article 4(2) are protected at all times, even in
emergencies: the right to life; the right to be free from torture and CID treatment or punishment; the right to be free from slavery and
forced servitude; the right to be free from imprisonment for the inability to fulfill a contractual obligation; the right not to be subjected to
retroactive criminal laws and penalties; the right to recognition everywhere as a person before the law; and the right to freedom of thought,
conscience and religion.311
48
Committee Proposed Provision CHRGJ Recommendations
Committee For
Preserving the
National Interests
“(1) If a grave emergency arises in regard to the sovereignty or
integrity of Nepal or the security of any part thereof, whether
by war, external aggression, armed rebellion or extreme
economic disarray, the Head of the State on the
recommendation of the Head of the State/Council of
Ministers of the Government of Nepal may, by proclamation
or order, declare a state of emergency to be enforced in Nepal
or any specified part thereof.
(2) If grave emergency arises in a province as a result of severe
natural disaster or extreme economic disarray, the government
of the province with consent of the Central/Union
government may, by proclamation or order, declare a state of
emergency in the areas falling under its provincial
jurisdiction.”
This provision fails to comply with Nepal’s international
human rights obligations. In keeping with Nepal’s
international human rights obligations, this provision should:
Strictly limit the circumstances in which the
Government can declare a state of emergency to
situations that threaten the life of the nation.
Limit derogation measures to the extent strictly
required by the exigencies of the situation.
Prohibit discrimination on any forbidden grounds.
Protect certain rights as non-derogable even in a state
of emergency, as listed above.
STATE STRUCTURES
LEGISLATURE
As noted throughout this Chart, as a State Party to a number of international human rights treaties, Nepal is obligated to ensure non-discrimination
and substantive equality for women and for members of marginalized groups, such as Dalits.312 To achieve substantive equality, States may adopt
“special measures,” such as providing for proportionate representation in state structures to ensure to women and members of marginalized groups
meaningful participation in all decision-making processes. 313 Such proposals should be carried out on the basis of accurate and disaggregated data,
including an accurate census.314 Such proposals should also consider the multiple forms of discrimination faced by women who belong to
marginalized groups, such as Dalit women, and should ensure their proportional representation. Finally, Nepal must also ensure the right to nondiscrimination
in participation in elections and within political parties.315
In keeping with Nepal’s obligations under international human rights law, the proposed provision on the legislature in the new Constitution should:
Provide for and enforce special measures for women, Dalits, and other marginalized groups to ensure their proportionate participation in
legislative bodies.
Prohibit or revoke registration of political parties that unlawfully discriminate in either their membership, leadership, or nomination of
individuals for political positions.
JUDICIARY
Pursuant to international human rights law, Nepal is obligated to ensure the right to an effective remedy to all persons whose human rights are
49
violated.316 To comply with this obligation, the new Constitution must establish independent and impartial bodies to address claims of rights
violations.317 In keeping with its obligation to eliminate discrimination and ensure substantive equality, Nepal should additionally adopt special
measures to ensure that women, Dalits, and other marginalized groups are proportionately represented in the judiciary.318 As with all special
measures, this requires accurate and disaggregated data, including an accurate census.319
In keeping with Nepal’s obligations under international human rights law, the proposed provision on the judiciary in the new Constitution should:
Ensure that all levels of the judiciary are competent, independent, and impartial and capable of providing a remedy for the violations within
their jurisdiction.
Ensure that all people, including non-citizens, have the right to petition an independent and impartial court when their constitutional rights
are violated.
Provide for and enforce special measures for women, Dalits, and other marginalized groups to ensure their proportionate participation in the
judiciary.
NATIONAL CONSTITUTIONAL BODIES AND COMMISSIONS
To comply with its obligation to respect, protect, and fulfill human rights, Nepal may establish national human rights institutions to investigate
allegations of rights violations and to monitor Nepal’s compliance with its human rights obligations.320 In addition to a Human Rights Commission,
the Constitution should also establish a National Dalit Commission as a constitutional body to address the systemic effects of caste discrimination.
In order to be effective, such institutions must be independent and impartial and must enjoy “an important degree of autonomy from the executive
and the legislature,”321 including financial autonomy.322 To further ensure the right to an effective remedy, these commissions should be given broad
investigative and enforcement powers. Furthermore, in order to comply with its obligation to ensure substantive equality and non-discrimination,
Nepal should adopt special measures to ensure that Dalits, women, and other marginalized groups are proportionately represented in national
human rights institutions.323 As with all special measures, this requires a comprehensive and accurate census.324
In keeping with Nepal’s obligations under international human rights law, the proposed provision on “National Constitutional Bodies or
Commissions” in the new Constitution should:
Establish the Human Rights Commission and the National Dalit Commission as constitutional bodies with broad investigative and
enforcement powers.
Provide for the financial autonomy of these commissions.
Provide for and enforce special measures for Dalits and other marginalized groups, including women, to ensure their proportionate
participation in these commissions.
50
1 See generally, CHRGJ, Caste Discrimination Project, http://www.chrgj.org/projects/discrimination.html (last visited Jan. 19, 2009).
2 The following Thematic Committees’ Concept Papers were reviewed: National Interest Preservation Committee; Committee on
the Protection of the Right of Minorities and Marginalized Communities; Committee for Determining the Base of Cultural and
Social Solidarity; Committee for Determining the Structure of Constitutional Bodies; Form of Legislative Body Committee; Judicial
System Committee; and the Committee on Fundamental Rights and Directive Principles of the State. Our analysis is based on
English translations of the concept papers available through the Centre for Constitutional Dialogue, an initiative of the United
Nations Development Programme’s project on Support to Participatory Constitution Building in Nepal. Centre for Constitutional
Dialogue, Concept Papers Presented at the Constituent Assembly, http://www.ccd.org.np/en/constituent/concept.php. An
unofficial English translation of the Concept Paper of the Committee on Fundamental Rights and Directive Principles of the State
was used, as an official translation was not available from the Centre for Constitutional Dialogue at the time of writing.
3 Nepal is a party to the following international human rights treaties: the International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD), Mar. 7, 1966, 660 U.N.T.S. 195; the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), Dec. 18, 1979, 1249 U.N.T.S. 13; the CEDAW Optional Protocol, Oct. 15, 1999, 2131
U.N.T.S.83; the International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, 999 U.N.T.S. 171; the ICCPR’s First
Optional Protocol, Dec. 19, 1996, 999 U.N.T.S. 302; the ICCPR’s Second Optional Protocol, Dec. 15, 1989, 1642 U.N.T.S 414; the
International Covenant on Economic, Social and Cultural Rights (ICESCR), Dec. 16, 1966, 993 U.N.T.S; the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, 1465 U.N.T.S. 85; the
Convention on the Rights of the Child (CRC), Nov. 20, 1989, 1577 U.N.T.S. 3, the Optional Protocol on the Involvement of
Children in Armed Conflict, U.N. Doc. A/RES/54/263 (May 25, 2000), and the Optional Protocol on the Sale of Children, Child
Prostitution and Child Pornography, G.A. Res. 54/263, U.N. Doc. A/54/49 (Jan. 18, 2000).; the Convention on the Rights of
Persons with Disabilities and Optional Protocol (CPD), Dec. 27, 2009, G.A. Res. 61/106, Annex I, U.N. GAOR, 61st Sess., Supp.
No. 49, at 65, U.N. Doc. A/61/49.
4 See Office of the High Commissioner for Human Rights, International Human Rights Law,
http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx
5 See Committee on the Elimination of Racial Discrimination (CERD Committee), General Recommendation No. 14: Definition of racial
discrimination, ¶ 2, U.N. Doc A/48/18 (Mar. 22, 1993) [hereinafter CERD Committee, General Recommendation No. 14]; HRC, General
Comment No. 18: Non-Discrimination, ¶ 7, U.N. Doc. HRI\GEN\1\Rev.1 (Nov. 10, 1989) [hereinafter HRC, General Comment No. 18];
Human Rights Council, Draft UN Principles and Guidelines for the Effective Elimination of Discrimination Based on Work and Descent, No. 18,
11th Sess., U.N. Doc. A/HRC/11/CRP.3 (May 18, 2009) [hereinafter Draft Principles & Guidelines].
6 See Human Rights Council, 11th Sess., Final Report of Mr. Yozo Yokota and Ms. Chin-Sung Chung, Special Rapporteurs on the
Topic of Discrimination Based on Work and Descent, U.N. Doc. A/HRC/11/CRP.3 (May 18, 2009), Annex I.
7 Nepal Backs UN Move on Caste, HIMALAYAN TIMES, Sept. 18, 2009; Draft Principles & Guidelines, supra note 5.
8 CHRGJ, RECASTING JUSTICE: SECURING DALIT RIGHTS IN NEPAL’S NEW CONSTITUTION (2008), available at
http://www.chrgj.org/projects/docs/recastingjustice.pdf.
9 CHRGJ, DALIT NGO FEDERATION (DNF), INTERNATIONAL DALIT SOLIDARITY NETWORK (IDSN), RECASTING JUSTICE:
SECURING DALIT RIGHTS IN NEPAL’S NEW CONSTITUTION: JOINT STATEMENT (Feb. 23, 2009), available at
http://www.chrgj.org/press/docs/nepalconstitutionpressrelease.pdf.
10 See DALIT NGO FEDERATION, REVIEW ON PRELIMINARY DRAFTS OF NEW CONSTITUTION: DALIT PERSPECTIVES (2009);
FEMINIST DALIT ORGANIZATION, DALIT WOMEN’S ISSUES SHOULD BE INCLUDED IN THE NEW CONSTITUTION (2009); FEMINIST
DALIT ORGANIZATION, REPORT OF INTERACTION PROGRAM ON CONCEPT PAPER OF FUNDAMENTAL RIGHTS & GUIDING
PRINCIPLES (2009); FEMINIST DALIT ORGANIZATION ET AL, DALIT ISSUES OF NEPAL FOR NEW CONSTITUTION (2009); RASTRIYA
DALIT NETWORK & DALIT STUDY AND DEVELOPMENT CENTRE, DALIT AGENDA IN THE NEW CONSTITUTION (2009).
Documents on file with CHRGJ.
11 ICCPR, supra note 3, art. 24(3); CEDAW, supra note 3, art. 9; ICERD, supra note 3, art. 5(d)(iii); see also CERD Committee, General
Recommendation No. 30: Discrimination Against Non-Citizens, 64th Sess., U.N. Doc. CERD/C/64/Misc.11/rev.3 (Dec. 1, 2004)
[hereinafter CERD Committee, General Recommendation No. 30]; Human Rights Committee (HRC), General Comment No. 17: Rights of
the Child (Article 24), ¶ 8, 35th Sess., 1989, U.N. HRI/GEN/1/Rev.6 (Apr. 7, 1989) [hereinafter HRC, General Comment No. 17].
12 See CERD Committee, General Recommendation No. 14 , supra note 5; HRC, General Comment No. 18, supra note 5.
13 See CRC, supra note 3, art. 2(1) (“States Parties shall respect and ensure the rights set forth in the present Convention to each
child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s
race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other
status.”); CAT, supra note 3, art. 1(1) (“For the purposes of this Convention, torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person . . . or any reason based on discrimination of any kind.”);
CEDAW, supra note 3, art. 2 (“States Parties condemn discrimination against women in all its forms…”); ICERD, supra note 3, art.
1(1) (“In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on
race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life), art. 1(4)(“Special measures taken for the sole purpose of securing adequate advancement of certain
51
racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided,
however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and
that they shall not be continued after the objectives for which they were taken have been achieved.”); ICESCR, supra note 3, art. 2.2
(“The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be
exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”); ICCPR, supra note 3, art. 2(1) (“Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”).
14 See CERD Committee, General Recommendation No. 14, supra note 5; HRC, General Comment No. 18: Non-Discrimination, supra note 5,
¶ 7; Draft Principles & Guidelines, supra note 5, No. 18.
15 See Universal Declaration of Human Rights, G. A. Res. 217A, art. 2, U.N. GAOR, 3d Sess., 1st plen. Mtg, U.N. Doc. A/810
(Dec. 12, 1948) [hereinafter UDHR]; ICERD, supra note 3, arts. 1, 2, & 5; ICESCR, supra note 3, arts. 2 (2) & 3; ICCPR, supra note
3, arts. 2 (1), 3 & 24 (1); CRC, supra note 3, art. 2; CEDAW, supra note 3, arts. 1, 2 & 11 (2); CPD, supra note 3, art. 5 (2); HRC,
General Comment No. 15: The Position of Aliens Under the Covenant, ¶ 2, U.N. Doc. HRI/GEN/1/Rev.1 (Nov. 4, 1986) [hereinafter
HRC, General Comment No. 15]; ESCR Committee, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights
(art. 2, para. 2), ¶¶ 29, 30, 32-34, U.N. Doc. E/C.12/GC/20 (May 25, 2009) [hereinafter ESCR Committee, General Comment No. 20];
Committee on the Rights of the Child (CRC Committee), General Comment No. 4, Adolescent Health and Development in the Context of the
Convention on the Rights of the Child, ¶ 6, U.N. Doc. CRC/GC/2003/4 (July 1, 2003) [hereinafter CRC Committee, General Comment No.
4].
16 See CERD Committee, General Recommendation No. 29: Discrimination Based on Descent, 61st Sess., U.N. Doc. A/57/18 (2002)
[hereinafter CERD Committee, General Recommendation No. 29]; see also Draft Principles & Guidelines, supra note 5, No. 2.
17 See ICERD, supra note 3, art. 2 (1) (b), (d); CERD Committee, General Recommendation No. 20: Non-discriminatory implementation of
rights and freedoms, 48th Sess., U.N. Doc. A/51/18 (1996)[hereinafter CERD Committee, General Recommendation No. 20]; CERD
Committee, General Recommendation No. 29, supra note 16, ¶6; Draft Principles & Guidelines, supra note 5, No. 10; see also HRC,
General Comment No. 31: Nature of the General Legal Obligation on State Parties to the Covenant, ¶ 8, 80th Sess., U.N. Doc.
CCPR/C/21/Rev.1/Add.13 (May 26, 2004) [hereinafter HRC Committee, General Comment No. 31].
18 ICERD, supra note 3, arts. 1(4) & 2(2); CEDAW, supra note 3, art. 3; CERD Committee, General Recommendation No. 32: The
meaning and scope of special measures, 75th Sess., U.N. Doc. CERD/C/GC/32 (Sep. 24, 2009) [hereinafter CERD Committee, General
Recommendation No. 32]; Committee on Economic, Social, and Cultural Rights (ESCR Committee), General Comment No. 16: The equal
right of men and women to the enjoyment of all economic, social and cultural rights, 34th Sess., U.N. Doc. E/C.12/2005/4 (Aug. 11, 2005)
[hereinafter ESCR Committee, General Comment No. 16]; Draft Principles & Guidelines, supra note 5, Nos. 3, 13, 18, 22, 24, 33, 36,
51.
19 CERD Committee, General Recommendation No. 32, supra note 18, ¶16.
20 Id., ¶ 17.
21 ICERD, supra note 3, art. 2 (1); see also CERD Committee, General Recommendation No. 29, supra note 16, ¶¶1-10.
22 ICERD, supra note 3, art. 1(4); see also CERD Committee , General Recommendation No. 29, supra note 16, ¶6; Draft Principles &
Guidelines, supra note 5, Nos. 7 & 18.
23 ICERD, supra note 3, art. 3.
24 Id. art. 4.
27 Id. art. 7.
25 Id. art. 5.
26 Id. art. 6.
28 See Id. art. 2 (1) (b) & (d); CERD Committee, General Recommendation No. 20, supra note 17; Draft Principles & Guidelines, supra
note 5, No. 10.
30 ICERD, supra note 3, art. 4; ICCPR, supra note 3, arts. 19-20; CERD Committee, General Recommendation No. 29, supra note 16,
¶¶18-20; HRC, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion, 48th Sess., U.N. Doc., A/48/40 vol. I
(1993)[hereinafter HRC, General Comment No. 22]; HRC, General Comment No. 11: Prohibition of propaganda for war and inciting national,
racial or religious hatred (Art. 20), U.N. Doc. HRI/GEN/1/Rev.1 (July 29, 1983)[hereinafter HRC, General Comment No. 11]; Draft
Principles & Guidelines, supra note 5, No. 50.
29 ICERD, supra note 3, art. 5(f); ICCPR, supra note 3, art. 18; Draft Principles & Guidelines, supra note 5, No. 21.
31 ICCPR, supra note 3, art. 2(1).
32 HRC, General Comment No. 15, supra note 15, ¶ 2.
33 ICCPR, supra note 3, art. 6.
34 Id. art. 7.
35 Id. art. 8. The prohibition on forced or compulsory labor does not preclude the performance of hard labor where such labor is
prescribed as punishment by a competent court. See id. at art. 8(3)(b).Under the ICCPR, the term “forced or compulsory labor”
does not include military service or national service for conscientious objectors, services during emergencies, and other work or
service that is part of normal civic obligations. See id. at art. 8(3)(c).
52
36 Id. art. 9.
37 Id. art. 17.
38 Id. art. 17.
39 Id. arts. 9, 10.
40 Id. art. 19.
41 Id. art. 21.
42 Id. art. 22.
43 Id. art. 23.
44 Id. art. 25(a).
45 Id. art. 25(b).
46 Id. arts. 18, 27.
47 Id. art. 12.
48 ICCPR, supra note 3, art. 18.
49 Id. art. 22.
50 Id. art. 25. The right to vote, however, is included by the Committee for Preserving the National Interest, in its preliminary article
on “Exercise of Sovereignty.”
51 Id. art. 2 (3).
52 Id. art. 2(1).
53 See, e.g., id. art. 12(3).
54 Id. arts. 17-19.
55 HRC, General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art. 7), ¶ 11,
U.N. Doc. HRI/GEN/1/Rev.1 (Mar. 10, 1992)[hereinafter HRC, General Comment No. 20]
56 ICCPR, supra note 3, art. 14.
57 See CAT, supra note 3, art. 1 (“For the purposes of this Convention, torture means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official
capacity.”); see also CAT Committee, General Comment 2, Implementation of article 2 by States parties, ¶ 15, U.N. Doc. CAT/C/GC/2 (Jan.
24, 2008)[hereinafter CAT Committee, General Comment 2] (Calling on each State Party to “prohibit, prevent, and redress torture and
ill-treatment in all contexts of custody or control, for example, in prisons, hospitals, schools, institutions that engage in the care of
children, the aged, the mentally ill or disabled, in military service, and other institutions as well as contexts where the failure of the
State to intervene encourages and enhances the danger of privately inflicted harm.”).
58 CAT, supra note 3, art. 4.
59 ESCR Committee, General Comment No. 3: The nature of States parties obligations (Art. 2, par.1), ¶¶ 1-2, U.N. Doc. E/1991/23, annex
III (Dec. 14, 1990) [hereinafter ESCR Committee, General Comment No. 3]; ESCR Committee, General Comment No. 20, supra note 15
¶ 7.
60 ICESCR, supra note 3, art. 12.
61 Id. art. 13.
62 Id. art. 15(a).
63 Id. art. 15(c).
64 ICCPR, supra note 3, art. 8(3)(a).
65 ICESCR, supra note 3, arts. 6-8; ICCPR, supra note 3, art. 22.
66 ICESCR, supra note 3, art. 9.
67 See HRC, Sub-Comm. on the Promotion and Protection of Human Rights, Final Report of the Special Rapporteur, Prevention of
Discrimination: the Rights of Non-Citizens, ¶ 19, U.N. Doc. E/CN.4/Sub.2/2003/23 (May 26, 2003) [hereinafter Final Report on the Rights
of Non-Citizens]; ESCR Committee General Comment No. 16, supra note 18; ESCR Committee, General Comment No. 20, supra note 15.
68 CEDAW, supra note 3, arts. 1-4.
69 Id. arts. 7-8.
70 Id. arts. 10-13.
71 See id. art. 5.
72 Id. art. 14.
73 Id. art. 5(a).
74 Id. art 16.
75 CRC, supra note 3, art. 32.
76 Id. art. 3(1).
77 Id. art. 7(1),
78 Optional Protocol on the Involvement of Children in Armed Conflict, supra note 3, arts. 1-2; id. art. 39.
79 CRC, supra note 3, art. 2.
80 Id. art. 12.
53
81 ICCPR, supra note 3, art. 2(3).
82 UDHR, supra note 15, art. 8; ICCPR, supra note 3, art. 2(3); ICERD, supra note 3, art. 6; CAT, supra note 3, art. 14; HRC, General
Comment No. 31, supra note 17, ¶ 15; ESCR Committee, General Comment No. 9: The domestic application of the Covenant, ¶ 4, U.N. Doc.
E/C.12/1998/24 (Dec. 3, 1998)].
83 ICCPR, supra note 3, art. 4(1)(Nepal may only declare a state of emergency in response to a situation that “threatens the life of the
nation”). This is to say, only in response to situations of the direst circumstances and not every disturbance or catastrophe. See
HRC, General Comment No. 29: States of Emergency, ¶ 3, 1950th Sess., U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001).
84 ICCPR, supra note 3, art. 4(2).
85 Id. art. 4(1).
C
88 Id. ¶ 17.
86 Id. art. 4(2)(“No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.”).
87 CERD ommittee, General Recommendation No. 32, supra note 18, ¶ 18.
89 See CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE (CHRGJ), THE MISSING PIECE OF THE PUZZLE: CASTE
DISCRIMINATION AND THE CONFLICT IN NEPAL 7 (2005); KRISHNA BHATTACHAN, TEJ SUNAR & YASSO KANTI BHATTACHAN,
CASTE-BASED DISCRIMINATION IN NEPAL, REGIONAL RESEARCH ON CASTE-BASED DISCRIMINATION IN SOUTH ASIA, INDIAN
INSTITUTE OF DALIT STUDIES 1, 17 (2008); LAWYERS NATIONAL CAMPAIGN AGAINST UNTOUCHABILITY (LANCAU), STATUS OF
DISTRIBUTION OF DRINKING WATER & NUTRITIOUS FOOD, STATUS OF TEXT BOOKS & IMPLEMENTATION OF LEGAL
PROVISIONS FOR ELIMINATING THE CRIME OF UNTOUCHABILITY 11 (2006).
90 CERD Committee, General Recommendation No. 29, supra note 16, ¶ 28; CERD Committee, Concluding Observations: Nepal, ¶ 132,
U.N. Doc. A/59/18 (2004).
91 See HRC, General Comment No. 31, supra note 17, ¶ 15; ESCR Committee, General Comment No. 10: The role of national human rights
institutions in the protection of economic, social and cultural rights, ¶¶ 1-2, U.N. Doc. E/C.12/1998/25 (Dec. 14, 1998) [hereinafter ESCR
Committee, General Comment No. 10].
92 See ESCR Committee, Concluding Observations: Nepal, ¶ 12, U.N. Doc. E/C.12/NPL/CO/2 (Jan. 16, 2008) (“The Committee also
notes with concern that there is no provision in the Interim Constitution dealing with the financial autonomy of the Commission.”).
93 HRC, General Comment No. 31, supra note 17, ¶ 4.
94 See S. AFR. CONST. 1996, art. 39(1) (“When interpreting the Bill of Rights, a court, tribunal or forum a. must promote the values
that underlie an open and democratic society based on human dignity, equality and freedom; b. must consider international law; and
c. may consider foreign law.”)
95 See ICCPR, supra note 3, art. 5 (“Nothing in the present Covenant may be interpreted as implying for any State, group or person
any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein
or at their limitation to a greater extent than is provided for in the present Covenant.”); ICESCR, supra note 3, art. 5 (same).
96 ICCPR, supra note 3, art. 2(1).
97 See Final Report on the Rights of Non-Citizens, supra note 67, ¶ 19.
98 See id. ¶¶ 7, 19; ESCR Committee, General Comment No. 3, supra note 59, ¶11; CERD Committee, General Recommendation No. 30,
supra note 11, ¶29.
99 See generally CRC, supra note 3 art. 2, 3(2); CAT, supra note 3, art. 2(1); CEDAW, supra note 3, art. 2; ICERD, supra note 3, art. 2;
ICCPR, supra note 3 art. 2; ICESCR, supra note 3, art. 2.
100 ICERD, supra note 3, art. 1(1)(“In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life), art. 1(4)(Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such
groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for
different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.”);
CRC, supra note 3, art. 2(1) (“States Parties shall respect and ensure the rights set forth in the present Convention to each child
within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race,
color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”);
CAT, supra note 3, art. 1(1) (“For the purposes of this Convention, torture means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person . . . or any reason based on discrimination of any kind.”); CEDAW,
supra note 3, art. 2 (“States Parties condemn discrimination against women in all its forms…”); ICESCR, supra note 3, art. 2(2)
(“The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be
exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”); ICCPR, supra note 3, art. 2(1) (“Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”).
101 CRC, supra note 3, art. 7(1); ICCPR, supra note 3, art. 24(3).
102 Human Rights Committee (HRC), General Comment No. 17, supra note 11, ¶ 8; see also CEDAW, supra note 3, art. 9(2).
54
103 ICERD, supra note 3, art. 5(d)(iii); CEDAW, supra note 3, art. 9. See also Committee on the Elimination of Racial Discrimination
(CERD Committee), General Recommendation No. 30, supra note 11 (stating that ICERD requires that State Parties: “13. Ensure that
particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization, and to pay due
attention to possible barriers to naturalization that may exist for long-term or permanent residents; [and] 14. Recognize that
deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States parties’ obligations
to ensure non-discriminatory enjoyment of the right to nationality,” and that States must “refrain from applying different standards
of treatment to female non-citizen spouses of citizens and male non-citizen spouses of citizens” and that States must allow “both
parents to transmit their citizenship to their children.”).
104 See ICCPR, supra note 3, art. 5 (“Nothing in the present Covenant may be interpreted as implying for any State, group or person
any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein
or at their limitation to a greater extent than is provided for in the present Covenant.”); ICESCR, supra note 3, art. 5 (same).
105 See CRC, supra note 3, art. 2(1) (“States Parties shall respect and ensure the rights set forth in the present Convention to each
child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s
race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other
status.”); CAT, supra note 3, art. 1(1) (“For the purposes of this Convention, torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person . . . or any reason based on discrimination of any kind.”);
CEDAW, supra note 3, art. 2 (“States Parties condemn discrimination against women in all its forms…”); ICERD, supra note 3, art.
1(1) (“In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on
race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life), art. 1(4)(“Special measures taken for the sole purpose of securing adequate advancement of certain
racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided,
however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and
that they shall not be continued after the objectives for which they were taken have been achieved.”); ICESCR, supra note 3, art. 2.2
(“The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be
exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”); ICCPR, supra note 3, art. 2(1) (“Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”).
106 See CERD Committee, General Recommendation No. 14, supra note 5, ¶ 2; HRC, General Comment No. 18, supra note 5, ¶ 7; Draft
Principles and Guidelines, supra note 5, No. 18.
107 See UDHR, supra note 15, art. 2; ICERD, supra note 3, arts. 1, 2, & 5; ICESCR, supra note 3, arts. 2 (2) & 3; ICCPR, supra note 3,
arts. 2 (1), 3 & 24 (1); CRC, supra note 3, art. 2; CEDAW, supra note 3, arts. 1, 2 & 11 (2); CPD, supra note 3, art. 5 (2); HRC, General
Comment No. 15, supra note 15, ¶ 2; ESCR Committee, General Comment No. 20, supra note 15, ¶¶ 29, 30, 32-34; CRC Committee,
General Comment No. 4, supra note 15, ¶ 6.
108 See CERD Committee, General Recommendation No. 29, supra note 16; see also Draft Principles & Guidelines, supra note 5, No. 2.
109 See ICERD, supra note 3, art. 2 (1)(b), (d); CERD Committee, General Recommendation No. 20 supra note 17 ; CERD Committee,
General Recommendation No. 29, supra note 16, ¶6; Draft Principles and Guidelines, supra note 5, No. 10.
110 ICERD, supra note 3, arts. 1(4) & 2(2); CEDAW, supra note 3, art. 3; CERD Committee, General Recommendation No. 32, supra note
18; ESCR Committee, General Comment No. 16, supra note 18; Draft Principles and Guidelines, supra note 5, Nos. 3, 13, 18, 22, 24,
33, 36, 51.
111 CERD Committee, General Recommendation No. 32, supra note 18, ¶16.
112 ICERD, supra note 3, art. 1(4).
113 CERD Committee, General Recommendation No. 32, supra note 18, ¶17; see also CERD Committee, General Recommendation No 29,
supra note 16; Draft Principles and Guidelines, supra note 5, Nos. 3, 20, and 53.
114 See CERD Committee, General Recommendation No. 32, supra note 18,, ¶ 25.
115 See CERD Committee, General Recommendation No. 30, supra note 11; HRC, General Comment No. 31, supra note 17.
116 See CERD Committee, General Recommendation No. 30, supra note 11, ¶¶1-4, 7, 18.
117 Navi Pillay, Tearing Down the Wall of Caste, Oct. 8, 2009, available at http://idsn.org/international-advocacy/un/un-principlesguidelines/
unhchr-opinion-piece/.
118 ICERD, supra note 3, art. 2 (1); see also CERD Committee, General Recommendation No. 29, supra note 16, ¶¶1-10.
119 ICERD, supra note 3, art. 1(4); see also CERD Committee , General Recommendation No. 29, supra note 16, ¶6; Draft Principles and
Guidelines, supra note 5 Nos. 7 & 18.
120 ICERD, supra note 3, art. 3.
121 Id. art. 4.
122 Id. art. 5.
123 Id. art. 6.
124 Id. art. 7.
55
125 See Id. art. 2(1)(b) & (d); CERD Committee, General Recommendation No. 20, supra note 17; Draft Principles and Guidelines, supra
note 5, No. 10.
126 ICERD, supra note 3, art. 5(f); ICCPR, supra note 3, art. 18; Draft Principles and Guidelines, supra note 5, No. 21.
127 ICERD, supra note 3, art. 4; ICCPR, supra note 3, arts. 19-20; CERD Committee, General Recommendation No. 29, supra note 16,
¶¶18-20; HRC, General Comment No. 22, supra note 30; HRC, General Comment No. 11, supra note 30; Draft Principles and Guidelines,
supra note 5, No. 50.
128 CERD Committee, General Recommendation No. 32, supra note 18, ¶ 17.
129 CERD Committee, General Recommendation No. 29, supra note 16, ¶23.
130 ICERD, supra note 3, art. 5(f); ICCPR, supra note 3, art. 18; Draft Principles & Guidelines, supra note 5, No. 21.
131 CERD Committee, General Recommendation No. 29, supra note 16, ¶23.
132 ICERD, supra note 3, art. 5(f); ICCPR, supra note 3, art. 18; Draft Principles and Guidelines, supra note 5, No. 21.
133 CERD Committee, General Recommendation No. 29, supra note 16, ¶23.
134 Id.
135 ICCPR, supra note 3, art. 6.
136 Id. art. 7.
137 Id. art. 8.
138 Id. art. 9.
139 Id. art. 17.
140 Id. art. 17.
141 Id. art. 19.
142 Id. art. 21.
143 Id. art. 22.
144 Id. art. 23.
145 Id. art. 25(a).
146 Id. art. 25(b).
147 Id. arts. 18, 27.
148 Id. art. 12.
149 Id. arts. 14, 15.
150 Id. art. 2(1).
151 HRC, General Comment No. 15, supra note 15, ¶ 2.
152 ICCPR, supra note 3, art. 18.
153 Id. art. 22.
154 Id. art. 25. The right to vote, however, is included by the Committee for Preserving the National Interest, in its preliminary article
on “Exercise of Sovereignty.”
155 Id. art. 2(3).
156 See, e.g., Laureano v. Peru, Hum. Rts. Comm.540/1993, ¶8.5, U.N. Doc.CCPR/C/56/D/540/1993 (1996); Committee on the
Convention Against Torture (CAT Committee), Consideration of Reports Submitted by States Parties Under Article 19 of the Convention:
Conclusions and Recommendations of the Committee against Torture, United States of America, ¶¶ 17-18, U.N. Doc. CAT/C/USA/CO/2
(May 18, 2006); HRC, General Comment No. 7: Torture or cruel, inhuman or degrading treatment or punishment, 16th Sess. (May 30, 1982).
157 ICCPR, supra note 3, art. 19.
158 Id. art. 21.
159 Id. art. 22.
160 Id. art. 12.
161 ICESCR, supra note 3, art. 6(1).
162 See ICCPR, supra note 3, art. 2(1); ICESCR, supra note 3, art. 6(1); HRC, General Comment No. 15, supra note 15, ¶2.
163 ICCPR, supra note 3, art. 6(1).
164 Id. art. 8.
165 Id. art. 7.
166 Id. art. 9.
167 Id. art. 9.
168 Id. art. 19.
169 Id. art. 20(2).
170 Id. art. 23(2).
171 Id. arts. 9, 14.
172 Id. art. 26.
173 Id. art. 18(1).
174 Id. art. 22(1).
175 See, e.g., id. art. 12(3).
176 Id. art. 18.
177 See id. arts. 5 & 18(3); HRC, General Comment No. 22, supra note 30.
56
178 Id. art. 18(3).
179 Id. art. 16.
180 Id. art. 14(1).
181 Id. art. 14(1).
182 Id. art. 9.
183 See HRC, General Comment No. 8 Right to Liberty and Security of Persons, ¶1, 16th Sess., U.N. Doc. A/37/40 (1982) [hereinafter HRC,
General Comment No. 8]; HRC, General Comment No. 21, Replaces general comment 9 concerning humane treatment of persons deprived of liberty, ¶2,
44th Sess. (Oct. 4, 1992)[hereinafter HRC, General Comment No. 21].
184 ICCPR, supra note 3, art. 10(1).
185 Id. art 9(1), (2), (4), (5); HRC, General Comment No. 8, supra note 183, ¶4; UN Body of Principles for the Protection of all Persons
under Any Form of Detention or Imprisonment, Nos. 10, 11, 32, G.A. Res. 43/173 (Dec. 9 1988) [hereinafter UN Principles on
Detention and Imprisonment]
186 Id. No.11; UN Basic Principles on the Role of Lawyers, U.N. Doc. A/CONF.144/28/Rev.1, Nos. 6-8 (1990) [hereinafter UN
Principles on Lawyers].
187 UN Principles on Detention and Imprisonment, supra note 185, Nos. 14, 17.
188 Id. Nos. 13, 17; UN Principles on Lawyers, supra note 186, No. 5.
189 ICCPR, supra note 3, art. 9(3).
190 Id. art. 14(2).
191 Id. art. 14(3)(a).
192 Id. art. 14(3)(f).
193 Id. art. 14(3)(d).
194 Id. art. 14(3)(e).
195 Id. art. 14(3)(g).
196 Id. arts (3)(c), 9(3), 14(1).
197 Id. art. 14(3)(b).
198 Id. art. 9(3).
199 Id. art. 14(5).
200 Id. art. 14(6).
201 Id. art. 14(7).
202 Id. art. 15.
203 Id. art. 14(4).
204 Id. art. 11.
205 Id. art. 15(2).
206 See, e.g., CAT Committee, Conclusions and Recommendations of the Committee against Torture: Nepal, ¶14, U.N. Doc.
CAT/C/NPL/CO/2 (Apr. 13, 2007); see also HRC, Concluding Observations of the Human Rights Committee: Israel, ¶¶12-13, U.N. Doc.
CCPR/CO/78/ISR (Aug. 21, 2003)[hereinafter HRC, Concluding Observations: Israel 2003]; HRC, Concluding Observations of the Human
Rights Committee: Ireland, ¶¶15-18, U.N. Doc. A/55/40 (July 24, 2000).
207 UN High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the Situation of Human
Rights and the Activities of her Office, Including Technical Cooperation, in Nepal, ¶ 26, U.N. Doc. E/CN.4/2006/107 (Feb. 16 2006)
(“Arbitrary arrest and detention of suspected members of or sympathizers of [the Maoist insurgents] continued to be a major
source of complaints. . . Detainees were often arrested by security officials in plainclothes, without being informed of the reasons,
and held in detention without notification to their families or a lawyer. An analysis of cases where habeas corpus writ petitions were
filed showed frequent denial of detention (giving rise to cases of disappearances), false or misleading information provided to the
court by authorities or security forces, and rearrest after a court ordered release.”).
208 See HRC, General Comment No. 8, supra note 183, ¶¶1, 4; see also HRC, Communication No. 1324/2004: Australia, ¶ 7.2, Safiq v.
Australia, U.N. Doc. CCPR/C/88/D/1324/2004 (Nov. 13, 2006).
209 ICCPR, supra note 3, art. 9(1); see also UN Principles on Detention or Imprisonment, supra note 185, No. 9.
210 ICCPR, supra note 3, art. 9(1); HRC, General Comment No. 8, supra note 183, ¶ 4.
211 UN Principles on Detention or Imprisonment, supra footnote 185, Nos. 11, 32; HRC, Concluding observations: United States of
America, ¶ 18, CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006); HRC, Concluding Observations: Israel 2003, supra note 206, ¶¶ 12-13;
HRC, Concluding Observations: Israel, ¶ 21, CCPR/C/79/Add.93 (Aug. 18, 1998); HRC, Concluding Observations: India, ¶ 24,
CCPR/C/79/Add.81 (Aug. 4, 1997)[hereinafter HRC, Concluding Observations: India].
212 ICCPR, supra note 3, art. 9(2); HRC, General Comment No. 8, supra note 183, ¶ 4; see also UN Principles on Detention or
Imprisonment, supra footnote 185, No. 10; HRC, Concluding Observations: India, supra note 211, ¶ 24.
213 ICCPR, supra note 3, art. 9(4); HRC, General Comment No. 8, supra note 183, ¶ 4; UN Principles on Detention or Imprisonment,
supra footnote 185, No. 11.
214 ICCPR, supra note 3, art. 9(5); HRC, General Comment No. 8, supra note 183, ¶ 4.
215 See UN Commission on Human Rights, Working Group on Arbitrary Detention, Report on Civil and Political Rights, Including the
Question of Torture and Detention, ¶ 64, U.N. Doc. E/CN.4/2003/8 (Dec. 12, 2005).
216 ICCPR, supra note 3, art. 10(1).
57
217 HRC, General Comment No. 21, supra note 183, ¶ 3.
218 HRC, General Comment No. 20, supra footnote 55, ¶ 11.
219 UN Principles on Detention or Imprisonment, supra note 185, Nos. 15, 16, 19; HRC, Concluding Observation: Spain, ¶¶ 12, 18, U.N.
Doc. CCPR/C/79/Add.61 (Apr. 3, 1996); HRC, Concluding Observations: Egypt, ¶ 16, U.N. Doc. CCPR/CO/76/EGY (Nov. 28,
2002).
220 CAT, supra note 3, arts. 2(1), 4, 12, 14(1), 16(1); HRC, General Comment No. 20, supra note 55.
221 See ICCPR, supra note 3, arts. 4, 7; CAT, supra note 3, art. 2; Prosecutor v. Furundzija, Case No. IT-95-17/1, ICTY Trial
Chamber, Judgment, ¶ 153-57 (Dec. 10, 1998); HRC, General Comment No. 24, Issues relating to reservations made upon ratification or
accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, ¶ 8, U.N. Doc.
CCPR/C/21/Rev.1/Add.6 (Nov. 2, 1994).
222 See ICERD, supra note 3, art. 5(b); HRC, General Comment No. 20, supra note 55, ¶ 2 (“The aim of the provisions of article 7 of the
International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the
individual. It is the duty of the State Party to afford everyone protection through legislative and other measures as may be necessary
against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in
a private capacity.”).
223 CAT, supra note 3, art. 1(1).
224 Id. art. 15.
225 See id., art. 1 (“For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him
or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”); See also CAT
Committee, General Comment 2, supra note 57, ¶ 15 (calling on each State Party to “prohibit, prevent, and redress torture and illtreatment
in all contexts of custody or control, for example, in prisons, hospitals, schools, institutions that engage in the care of
children, the aged, the mentally ill or disabled, in military service, and other institutions as well as contexts where the failure of the
State to intervene encourages and enhances the danger of privately inflicted harm.”).
226 See CAT, supra note 3, arts. 13-14(1); HRC, General Comment No. 20, supra footnote 55.
227 ICCPR, supra note 3, art. 19(2).
228 Id. art. 19(3).
229 Id. art. 19(2).
230 HRC, General Comment No. 10: Freedom of Expression (Art. 19), U.N. Doc. HRI/GEN/1/Rev.6 (June 29, 1983).
231 ICCPR, supra note 3, art. 20(2); see also ICERD, supra note 3, at art. 4; CERD Committee, General Recommendation No. 29, supra
note 16, ¶¶ 18-20; HRC, General Comment No. 22, supra note 30; HRC, General Comment No. 11, supra note 30; Draft Principles and
Guidelines, supra note 5, No. 50.
232 ICCPR, supra note 3, art. 19(3).
233 Id. art. 17 (1).
234 HRC, General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17),
¶ 4, U.N. Doc. HRI/GEN/1/Rev.6 (Apr. 8, 1988).
235 ICCPR, supra note 3, art. 17 (2).
236 Id. art. 23; ICESCR, supra note 3, art. 10.
237 ICCPR, supra note 3, art 23(3); ICESCR, supra note 3, art. 10(1).
238 ICERD, supra note 3, art 5(d)(iv).
239 ICCPR, supra note 3, art 23(4).
240 ICESCR, supra note 3, art. 2(1).
241 Id. art. 11(1).
242 ESCR Committee, General Comment No. 3, supra note 59, ¶¶ 1-2; ESCR Committee, General Comment No. 20, supra note 15, ¶ 7.
243 CERD Committee, General Recommendation No. 30 supra note 11, ¶ 29.
244 See HRC, Sub-Comm. on the Promotion and Protection of Human Rights, Final Report of the Special Rapporteur, Prevention of
Discrimination: the Rights of Non-Citizens, ¶ 19, U.N. Doc. E/CN.4/Sub.2/2003/23 (May 26, 2003).
245 See id., at ¶¶ 7, 19; ESCR Committee, General Comment No. 3, supra note 59, ¶ 11; CERD Committee, General Recommendation No.
30, supra note 11, ¶ 29.
246 ESCR Committee, General Comment No. 20, supra note 15, ¶ 9.
247 ESCR Committee, General Comment No. 15: The Right to Water, U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003).
248 ICESCR, supra note 3, art. 12(1).
249 ICERD, supra note 3, art. 5(e)(iv); ICESCR, supra note 3, arts. 2(2), 3; CERD Committee, General Recommendation No. 29, supra
note 16, ¶ 40.
250 ESCR Committee, General Comment No. 14: The right to the highest attainable standard of health, ¶ 11, U.N. Doc. E/C.12/2000/4 (Aug.
11, 2000) [hereinafter ESCR Committee, General Comment No 14].
251 CEDAW, supra note 3, art. 12(2).
252 ICESCR, supra note 3, art. 12(2)(b).
58
253 ESCR Committee, General Comment No. 14, supra note 250, ¶ 15.
254 ICESCR, supra note 3, art. 13(1).
255 Id. arts. 13, 14.
256 Id. art. 13(2)(d).
257 Id. art. 13; ICERD, supra note 3, art. 5(e)(v).
258 Draft Principles and Guidelines, supra note 5, No. 46; ESCR Committee, General Comment No. 13: The Right to Education, ¶ 32,
U.N. Doc. E/C.12/1999/10 (Dec. 10, 1999); see generally CERD Committee, General Recommendation No. 32, supra note 18.
259ICESCR, supra note 3, art. 15.
260 Id. art. 15(1)(a).
261 ICCPR, supra note 3, art. 27.
262 See id., art. 5; HRC, General Comment No. 23: The rights of minorities (Art. 27), ¶ 8, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (Apr. 8,
1994).
263 ICESCR, supra note 3, art. 6(1).
264 Id. art. 7.
265 Id. art. 8 (1); ICCPR, supra note 3, art. 22.
266 ICESCR, supra note 3, art. 8(1)(a).
267 ICCPR, supra note 3, art. 8(3)(a).
268 Id. art. 8(3)(b).
269 Id. art. 8(3)(c).
270 ICESCR, supra note 3, art. 9; see also ESCR Committee, General Comment No. 19, The Right to Social Security, ¶ 22, U.N. Doc.
E/C.12/GC/19 (Feb. 4, 2008).
271 ESCR Committee, General Comment No. 19: The right to social security (art. 9), ¶ 4, U.N. Doc. E/C.12/GC/19 (Feb. 4, 2008).
272 See CEDAW, supra note 3, art. 4; CERD, supra note 3, art. 2(2); CERD Committee, General Recommendation No. 14, supra note 5, ¶
2; HRC, General Comment No. 18, supra note 5, ¶ 7; Draft Principles & Guidelines, supra note 5, No. 18.
273 CERD Committee, General Recommendation No. 32, supra note 18, ¶ 22.
274 See CEDAW, supra note 3, art. 4(1).
275 CERD Committee, General Recommendation No. 32, supra note 18, ¶ 33.
276 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration, ¶ 108, U.N. Doc. A/
CONF.189/12 (2001); see, e.g., S. AFR. CONST. 1996, art. 25(5) (“The state must take reasonable legislative and other measures,
within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”).
277 CERD Committee, General Recommendation No. 32, supra note 18, ¶¶ 16-17; see also CERD Committee, General Recommendation No.
29, supra note 16; Draft Principles & Guidelines, supra note 5, Nos. 3, 20, 53.
278 See S. AFR. CONST. 1996, art. 25.
279 ICESCR, supra note 3, art. 11.
280 ESCR Committee, General Comment No. 12: The right to adequate food (Art. 11), ¶¶ 8, 14, U.N. Doc. E/C.12/1999/5 (May 12, 1999).
281 ESCR Committee, Nepal Concluding Observations 2008, ¶ 4, U.N. Doc. E/C.12/NPL/CO/2 (Jan. 16, 2008).
282 See CERD Committee, General Recommendation No. 30, supra note 11, ¶ 29 (“Remove obstacles that prevent the enjoyment of
economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health.”).
283 ICESCR, supra note 3, art. 11(1) (“The States Parties to the present Covenant recognize the right of everyone to an adequate
standard of living for himself and his family, including adequate food, clothing, and housing, and to continuous improvement of
living conditions. The States Parties will take appropriate steps to ensure the realization of this right.”).
284 ESCR Committee, General Comment No. 4: The right to adequate housing (Art.11 (1)), ¶ 7, U.N. Doc. E/1992/23 (Dec. 13, 1991).
285 Id. ¶ 8(a)
286 ICERD, supra note 3, arts. 3, 5(e)(iii).
287 CEDAW, supra note 3, arts. 1-4.
288 Id. arts. 7-8.
289 Id. art. 10.
290 Id. art. 11.
291 Id. art. 12.
292 Id. art. 13.
293 See id. art. 5.
294 Id. art. 14.
295 See CERD Committee, General Recommendation No. 29, supra note 16, ¶¶ 11-13; Draft Principles & Guidelines, supra note 5, Nos.
53 & 54.
296 CEDAW, supra note 3, art. 5(a).
297 See Draft Principles & Guidelines, supra note 5, No. 53; CERD Committee, General Recommendation No. 29, supra note 16, ¶¶ 11-
13; CERD Committee, General Recommendation No. 32, supra note 18, ¶ 17.
298 CRC, supra note 3, art. 2.
299 Id. art. 3(1).
300 Id. art. 32.
59
301 Id. arts. 7(1), 6(2), 27(1), 24(1), 34.
302 CRC, Optional Protocol on the involvement of children in armed conflict, supra note 3, arts. 1-2.
303 CRC, supra note 3,, art. 39.
304Id. art. 12.
305 UDHR, supra note 15, art. 8; ICCPR, supra note 3, art. 2(3); ICERD, supra note 3, art. 6; CAT, supra note 3, art. 14; HRC, General
Comment No. 31, supra note 17, ¶ 15; ESCR Committee, General Comment No. 9, supra note 82, ¶ 4.
306 HRC, General Comment No. 31, supra note 17, ¶ 4.
307 ICCPR, supra note 3, art. 4(1).
308 HRC, General Comment No. 29: States of Emergency, ¶ 3, 1950th Sess., U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001).
309 Id. ¶4.
310 ICCPR, supra note 3, art. 4(1).
311 Id. art. 4(2)(“No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.”).
312 ICERD, supra note 3, art. 1(1)(“In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life), art. 1(4)(“Special measures taken for the sole purpose of securing
adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to
ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed
racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights
for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.”);
CRC, supra note 3, art. 2(1) (“States Parties shall respect and ensure the rights set forth in the present Convention to each child
within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race,
color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”);
CAT, supra note 3, art. 1(1) (“For the purposes of this Convention, torture means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person . . . or any reason based on discrimination of any kind.”); CEDAW,
supra note 3, art. 2 (“States Parties condemn discrimination against women in all its forms…”); ICESCR, supra note 3, art. 2(2)
(“The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be
exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”); ICCPR, supra note 3, art. 2(1) (“Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”).
313 CERD Committee, General Recommendation No. 32, supra note 18, ¶ 18.
314 Id. ¶ 17.
315 CERD Committee, General Recommendation No. 29, supra note 16, ¶ 28; CERD Committee, Concluding Observations: Nepal, ¶ 132,
U.N. Doc. A/59/18 (2004).
316 See UDHR, supra note 15, art. 8; ICCPR, supra note 3, art. 2(3); supra note 3, art. 6; CAT, supra note 3, art. 14; HRC, General
Comment No. 31, supra note 17, ¶ 15; ESCR Committee, General Comment No. 9, supra note 82, ¶ 4.
317 See HRC, General Comment No. 31, supra note 17, ¶ 15.
318 See Draft Principles and Guidelines, supra note 5, No. 33.
319 See CERD Committee, General Recommendation No. 32, supra note 18, ¶ 17.
320 See HRC, General Comment No. 31, supra note 17, ¶ 15; ESCR Committee, General Comment No. 10, supra note 91, ¶¶ 1-2 .
321 ESCR Committee, General Comment No. 10, supra note 91, ¶ 2.
322 ESRC Committee, Nepal Concluding Observations 2008, supra note 281, ¶ 12 (“The Committee also notes with concern that there is
no provision in the Interim Constitution dealing with the financial autonomy of the Commission.”).
323 See Draft Principles and Guidelines, supra note 5, No. 33.
324 See CERD Committee, General Recommendation No. 32, supra note 18, ¶ 17.
CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE
New York University School of Law
110 West Third Street, Room 204
New York, NY 10012
www.chrgj.org
RIGHTS WITHIN REACH
Securing Equality and Human Rights in Nepal's New Constitution
Ending centuries of caste-based discrimination and ensuring Dalit rights must be a central feature of Nepal’s long
awaited social, political, and economic transformation. The drafting of the new Constitution presents the
Constituent Assembly of Nepal with the profound opportunity to demonstrate Nepal’s commitment to human
rights and to the inherent dignity of all individuals. Many of the proposals for the new Constitution take
significant steps toward meeting these goals. However, critical gaps in rights protections remain that must be
addressed.
Rights Within Reach analyzes proposals for the new Constitution in light of Nepal’s obligations under international
human rights law and provides Nepalese lawmakers with a clear roadmap for ensuring that the country lives up to
its commitment to ending caste-based discrimination and ensuring human rights for all. The report includes a
Statement that summarizes our main recommendations, and an accompanying Chart that provides a provision-byprovision
analysis of many of the proposals under review.
The report draws on the Center’s expertise on caste discrimination and international human rights law, and builds
on its 2008 report Recasting Justice: Securing Dalit Rights in Nepal’s New Constitution. The report was produced in
close consultation with Dalit advocates, members of Nepal’s legal and academic community, and experts in
constitutional and international human rights law.
Dalits work on the road from Rolpa to
Thabang in western Nepal. In the
country's democratic transition, Dalits
are demanding their meaningful
participation in Nepal's governance
and constitutional affirmation of their
fundamental human rights.
Image ©2006 Ami Vitale.
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