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Non-implementation of Legislation

Tikapir Kailali, Far Western Province, Nepal, 2008. Water tap for Dalits only. Although caste discrimination is prohibited according to Nepal's Constitution from 1990, the Tikapir Kailali municipality institutionalised the discriminatory belief that Dalits are ‘dirty’ when they decided to make two separate water taps.

Although constitutitional and legislative measures to protect the rights of Dalits have been enacted in most affected countries, implementation of such laws remains alarmingly weak and insufficient.

As a consequence, caste discrimination - and the practice of "untouchability" - continues to persist, often with impunity for perpetrators of gross human rights violations.

To eliminate this form of discrimination, governments must enforce legislation and address existing patterns of impunity for human rights violations against Dalits committed by both state actors and non-state actors.

Prohibition of caste discrimination in national constitutions

A number of national constitutions explicitly refer to ’caste’ in their non-discrimination provisions.

  • The Constitution of India prohibits discrimination on the grounds of ’religion, race, caste, sex, place of birth or any of them’ (article 15) and provides for the abolition of the practice of ’untouchability’ (article 17). A great number of constitutional bodies, special legislative measures, and executive orders have been established in India to enable ‘Scheduled Castes’ (the official term for Dalits) to seek redress for human rights violations. Moreover, several national commissions and state institutions have been established for the same purpose.

  • Nepal’s Constitution prohibits discrimination based of ’religion, race, sex, caste, tribe, or ideological conviction or any of these’ (article 11).

  • Pakistan’s Constitution lists ‘race, religion, caste, sex, residence or place of birth’ as prohibited grounds of discrimination in various contexts (articles 22, 26 and 27).

  • Bangladesh’s Constitution prohibits public or private discrimination ‘on the grounds only of religion, race, caste, sex or place of birth” (article 28).

  • Sri Lanka includes the markers of ‘race, religion, language, caste, sex, political opinion, place of birth’ in its constitutional non-discrimination provisions (articles 11 and 27). 

  • Burkina Faso also includes caste in the list of prohibited grounds of discrimination in the first article of its 1997 Constitution.

Non-implementation of laws prohibiting caste discrimination

Despite the fact that caste discrimination is prohibited in several countries, implementation is the main problem. Numerous reports, statistics and cases document persistent patterns of discrimination against Dalits. Perpetrators often enjoy impunity for acts of exclusion and heinous crimes against Dalits, and many cases are never registered due to threats by dominant castes and negligence of the police. There is systemic discrimination in access to employment, education, health, budgetary allocations for Dalit development and in the criminal justice administration system.

> See list of UN treaty body reports documenting systematic violations of Dalit rights

It is therefore essential that governments ensure implementation of existing provisions for the promotion and protecting of Dalit rights under the universal principles of equality and non-discrimination.  Existing patterns of impunity for rights violations and crimes against Dalits must be addressed and prevented, and policies designed to alleviate the historic injustices against Dalits, including in development and employment, must be implemented. Experience in caste affected countries show that guaranteeing rights on paper is not enough, and strong implementation and enforcement is critical.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act

One critical example is the lack of implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, passed in India in 1989. While this law was specifically enacted to prevent and to protect Dalits from atrocities committed against them by non-Dalits, the low conviction rates shows that this Act does not live up to its objectives. The 20th anniversary of the Act presents a historic opportunity to work for enhanced implementation of the SC/ST Act and to critically review its performance in realization of its objectives and provisions.

> Read more about the non-implemention of the SC/ST Act

UN recommendations on enhanced implementation of legislation

Several UN human rights bodies have underlined the need for strong enforcement of laws to prevent and eliminate discrimination, including caste discriminati

  • UN treaty bodies, in particular the Committee on the Elimination of Racial Discrimination (CERD), have expressed deep concern about the non-implementation of legislative measures to protect the rights of Dalits in a large number of affected countries. See the list of concluding observations here.

  • Independent UN experts, in particular the UN Special Rapporteur on contemporary forms of racism, have made general observations on the inadequacy of the implementation of laws and reported on several individual cases where national mechanisms were inadequate in protecting individual rights to equality and non-discrimination. Read their observations here.

  • The UN High Commissioner for Human Rights has encouraged affected governments to take effective steps to eliminate caste discrimination. She has also strongly urged the international community to join the global struggle against caste discrimination as it did when fighting apartheid.

  • The Durban Declaration and Programme of Action (DDPA) underlined that obstacles to overcoming racial discrimination and achieving racial equality mainly lie in the lack of political will, weak legislation and lack of implementation strategies and concrete action by States (article 79). In follow-up to the implementation of the DDPA, the outcome document of the Durban Review Conference emphasised the need for effective implementation of the International Convention on the Elimination of Racial Discrimination (section 3).

UN guidelines to eliminate caste discrimination

Building on existing principles of international human rights law, the draft UN principles and guidelines for the effective elimination of discrimination based on work and descent proposes specific measures to be taken by governments to strengthen implementation of laws to prevent and address caste discrimination.

IDSN recommends that the draft UN principles and guidelines may be used as a guiding framework for governments, international institutions, UN expert mechanisms and private actors that seek to comprehensively address issues pertaining to this entrenched form of discrimination.

Database

IDSN has created an extensive database on caste-based discrimination.

Click here for all documents on non-implementation >>

Other resources

Lesson series published by the Human Rights Correspondance School:

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