RIGHT TO EQUALITY (RIGHT AGAINST CASTE DISCRIMINATION)
COURT: Supreme Court Of Nepal
CATEGORY: Civil Case
BACKGROUND:
Article 11(4) of the Constitution of the Kingdom of Nepal provides that no person would be discriminated against on the grounds of caste or untouchability or prohibited to use any public entity or be present in public places. Such action would be punishable in accordance ith the law. Similarly, the provision in the Civil Code (Muluki Ain) provides that anyone committing such an offence would be imprisoned for one year and fined up to the amount of Rs. 3000. These mentioned provisions are positive, timely and humanitarian; however, the respondents have maintained a clarification on the provision of in Clause 10(a) of the chapter saying that "the treatment which has been practised traditionally in a temple or religious place would not constitute discrimination.
DETAILS:
Article 11(4) of the Constitution of the Kingdom of Nepal provides that no person would be discriminated against on the grounds of caste or untouchability or prohibited to use any public entity or be present in public places. Such action would be punishable in accordance with the law. Similarly, the provision in the Civil Code (Muluki Ain) provides that anyone committing such an offence would be imprisoned for one year and fined up to the amount of Rs. 3000. These mentioned provisions are positive, timely and humanitarian; however, the respondents have maintained a clarification on the provision of in Clause 10(a) of the chapter saying that "the treatment which has been practised traditionally in a temple or religious place would not constitute discrimination." Temples or religious places are public places and the clarification is inconsistent with Article 11 of the Constitution. In many religious places, Dalit castes, including the petitioner, are prohibited to enter public places in the name of tradition.
Therefore, the clarification in Clause 10(a) of the chapter on conduct is demanded to be declared unconstitutional. The respondents asserted that Article 19 of the Constitution provides that every religious group has the right to religion, keeping their independent identity. The treatment which has been practised from the beginning would not constitute discrimination. All temples and religious places could not be public, they may be private too. In some temples and religious places, it has been a practice from the very beginning that only particular religious creed or persons are allowed to enter and others are restricted from entering. The provision could not be interpreted as inconsistent with the right to equality and the right to religion. Therefore the petition was requested to be quashed.
VERDICT:
The Constitution has not only prohibited untouchability and other social wrong traditions but has also declared such acts punishable. The questioned clarification seems for making the main provision explicit. The main provision provides for punishment for the act of discriminating on the grounds of untouchability and restricting from public use. But the clarification seems to be supporting the discriminatory treatment. By the clarification the scope of the provision has been restricted and limited.
Clause 10(a) reveals that the prohibition of the discrimination as directed by Article 11(4) of the Constitution itself is sufficient for prescribing penalty. Therefore there seemed no need for such an explanation providing an exceptional provision. Such an exceptional legal provision would otherwise implicate the main provision and the Constitution would be controlled by the normal law. The fundamental difference between the Constitution and normal law might be absconded and constitutional purpose might be defeated. The questioned clarification restricts and limits the provision of Article 11(4) of the Constitution; therefore, it seems inconsistent with it and is declared invalid.