Criminology and Penology Case: Advocate Ratna Bahadur Bagchand vs. Council of Ministers and others, Writ No.46/061, NKP 2062 B.S., Decision Date: 2062/01/08, DN 7499
Case: Writ of Mandamus
Plaintiff/Applicant: Advocate Ratna Bahadur Bagchand and Others on behalf of Lawyers’ National Campaign Against Untouchability (LANCAU) Nepal
Defendant/Respondent: Office of the Prime Minister and Council of Ministers and Others
Decision Number:7499
This case is related to caste-based discrimination and untouchability in Nepal.
Facts of the Case:
LANCAU Nepal and its representatives filed a writ petition saying that local authorities had built and operated public drinking water sources separately for Dalits and non-Dalits, thus perpetuating caste based discrimination. They claimed that these practices were in violation of the Constitution of Nepal 2047, the Civil Rights Act, the Water Tax Act, the Local Self-Governance Act, and Nepal’s commitment under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
The petitioners had asked for a writ of mandamus to be issued to the Government to ensure that the public water sources were available to all irrespective of their caste, to remove the discrimination against the untouchables, and to ensure that the anti-untouchability laws were properly implemented. The respondents rejected the claims and stated that the water facilities were provided on the basis of public convenience and not on caste, that there were already mechanisms and institutions in place to address discrimination, and that the petitioners had not been able to establish any discrimination taking place or use up all other remedies before coming to the Supreme Court.
Legal Issues:
- Was there caste-based discrimination in the distribution and use of public drinking water sources?
- Should the supreme court issue writ of mandamus?
- Is there sufficient evidence to prove such discrimination taking place?
Different Courts Decisions:
Supreme Court:
The supreme court did not issue the writ of mandamus as the petitioners were not able to prove, on the basis of facts that discrimination on the basis of caste in public water supply actually occurred in the manner alleged in the petition. The Court also pointed out that the petitioners were not able to show that they had approached competent authorities like the National Dalit Commission for relief beforehand.
But the Court noted that the constitutional principle of equality is violated by the practice of untouchability and caste discrimination and that it is in the way of national development, the Court gave a directive order to the Government to take effective steps in the form of awareness and educational programes to eradicate the practice of untouchability and caste discrimination, which is deeply entrenched in society.
Principle Established:
- When other remedies are present, before invoking the court’s extraordinary writ jurisdiction the petitioners should exhaust available remedies
- Untouchability and caste discrimination is not in line with the fundamental principle of equality guaranteed by the Constitution and it is harmful to social harmony and national development.
- The Supreme Court can also give directive orders to the Government even if a writ is rejected so that the Government takes effective steps in the interest of the public.
