Balancing Rights Claims: Nepal's "Broken People"
Nicole Cordeau Friday, 12 May 2006
Nepal, a country that typically evokes serene images of snow-capped peaks and Shangri-La, is at a critical juncture that is filled with hope and uncertainty. Recent protests against Gyanendra, the latest in a dynasty of kings that are popularly believed to be incarnations of a Hindu god, have revealed the depth of national discontent and the fragility of social peace in this troubled land. Meanwhile, a decade-long Maoist insurgency carries on, trapping innocent people between two brutal armies.
Although the roots of this conflict are complex, entrenched patterns of social exclusion have created a disaffected base that the Maoists draw from in their struggle against the cultural, political, and religious status quo. These patterns of exclusion are largely the product of a Hindu caste system, rigidly practiced throughout the kingdom. This presents moral dilemmas for human rights advocates, as well as practical problems for all concerned about Nepal's ongoing political instability. Can religious "rights" claims be balanced or even overridden by other moral and legal claims?
Of Nepal's vulnerable groups, the Dalit, which literally translates to "broken people," occupy the lowest rung of the Hindu caste system and suffer the most severe and systematic exclusion and discrimination. The brutal abuse directed at Dalits raises important questions about tensions that must be resolved in order to balance different, and oftentimes conflicting, human rights. Although international law endows every person with a basic package of rights, these rights do not always coexist comfortably and often clash in practice.
The Hindu scriptural basis for caste discrimination is found in the Manusmriti, or "Laws of Manu," a text dating from the second century BCE that deals with Hindu law and conduct. The text denounces low castes and those outside of the varna system, calling them 'dog cookers,' a reference to their lowliness and impurity, and prohibits them from hearing the Veda1 and wearing the sacred thread. The Manusmriti asserts that these untouchables cannot own property and should be consigned to performing society's most demeaning, unclean, and back-breaking work. Manu declares that the mere touch of these individuals is polluting, and as a result, they must be cast outside of the community.
This ancient doctrine has very real consequences on the ground today. Although they make up an estimated 13% of the Nepal's population, Dalits are excluded from virtually every dimension of social, political, and religious life. They cannot enter temples or upper-caste businesses and homes, drink from communal water taps, access health care services, or attend certain schools. Very few Dalits own land, and many are trapped in debt-bondage contracts that amount to slavery. Any attempt to challenge the religious hierarchy invites brutal reprisals that include beatings, torture, rape, social ostracism, public humiliation, and sometimes murder. In one case, an elderly Dalit woman was accused of being a witch and forced to eat human excrement as a punishment. More common discrimination involves barring Dalits from public places like temples, hospitals, schools, and wells.
Despite the horrific litany of abuses that are reported nearly every day, both Nepal's Constitution and the UN Declaration of Human Rights, to which Nepal is an unreserved signatory, commit the government to protecting Dalit rights: Article 11(4) of the Constitution states that "no person shall, on the basis of caste, be discriminated against as untouchable, be denied access to any public place, or be deprived of the use of public utilities." Moreover, Article 7 of the UN Declaration enshrines the right to freedom from discrimination and equal protection before the law.
At the same time, Article 18 of the UN Declaration, freedom of conscience, asserts that every human being is entitled to freely choose and practice his or her religion. Taken in isolation, this right could be a justification for some forms of social exclusion based on the Hindu belief in a caste hierarchy and ritual pollution. The question then becomes: how do we deal with instances where one person's right to practice their religion conflicts with another person's right not to be a victim of discrimination?
Questions surrounding rights and their attendant obligations, as well as conflicting rights claims, have popped up in a number of recent debates, most notably the controversy over the Danish cartoons of the Prophet Muhammad. This tension has a particularly urgent quality in Nepal, a country that is on the brink of social chaos. Advocates for Dalits who have endured dehumanizing rights violations have often sought secular solutions through courts, international fora, and development initiatives. Yet at its root, caste discrimination is based in religious belief, and this is one of the reasons that proposed remedies that deal strictly with social and legal structures have not borne fruit.
Ultimately, governments, jurists, and most importantly, societies, need to strike a balance that ensures that one group's rights claim does not interfere with our individual obligation to treat our fellows in a manner that respects their inherent dignity. In practice, however, drawing this line is a messy business. Should upper-caste communities be allowed to exclude Dalits from festivals and religious rites to maintain ritual purity? Can a Brahmin rightfully refuse to let a Dalit into his house because he fears being polluted? Human rights advocates, myself included, reply with an emphatic no, but at what point does opposing exclusion infringe on the right of devout Hindus to practice their religion freely?
There is undoubtedly no easy way to resolve this conflict. One solution was proposed by Mahatma Gandhi, himself a devout Hindu: "There is no such thing as religion over-riding morality. Man, for instance, cannot be untruthful, cruel or incontinent and claim to have God on his side." The religious basis of Gandhi's appeal also hints at something many advocates and policy-makers miss: a debate grounded in theology and ethics is necessary if we are going to address the root of these types of conflicts and identify durable solutions that respect the inherent dignity of every person. It is also important to acknowledge that religious traditions are not immutable; faith interacts with society, both by shaping and being shaped. This lesson applies much more broadly than the Nepalese context, and religious and political leaders everywhere would do well to pay close attention as the situation evolves.
Clearly, there is a moral argument for working with the Dalit community and helping them realize their rights as human beings. There is also a practical argument; the current conflict cannot be understood in isolation of the realities of caste divisions. Even a cursory look at the composition of the Maoist army and the rhetoric of its leaders suggests that by addressing the grievances of the Dalit as victims of caste discrimination, we can undermine the basis for their support and lay the foundation for a lasting social peace in Nepal. The key power players ignore the caste dimensions of the civil conflict at their own peril.