Historically, caste-based segregation and discrimination is assumed to have been institutionalized in Nepal since the Malla period in the 15th century. The practice of caste-based discrimination might have been in practice before the Malla period but the segregation came to be systematized during the Malla period through the first codified law of Nepal, Manab Nyaya Sastra. The practice of caste-based discrimination, however, has been transformed over the years and any form of discrimination is strictly prohibited in the 21st century, as is guaranteed by the Constitution.
The objective of the article is to compare the practice of caste-based discrimination in Malla period and present context and deduce whether discrimination has been systematically increasing or decreasing along with time.
Caste-based discrimination is any action that specifically denies opportunities, privileges, or rewards to a person (or a group) because of their caste. Caste systems divide people into unequal and hierarchical social groups. Those at the bottom are considered ‘lesser human beings’, ‘impure’ and ‘polluting’ to other caste groups. Historically, Brahmins were considered as the superior castes and Sudras were considered as the ‘lower caste’ in Nepal. The groups at the bottom of the hierarchy used to be considered untouchables in Nepal.
Caste-based discrimination in Malla Period
Jayasthiti Malla (1382-1395) divided the Newars of Kathmandu valley into 64 castes. 3 He also framed the first codified law of Nepal, which had provisions that encouraged caste based discrimination. Many instances of caste-based discrimination have been seen in various chapters of Manav Nyaya Sastra, described in brief as follows.
Relating to man-woman relationship, it is stated that one must marry the person of the same Varna for people of all four Varna’s. Only Brahman men can marry women of all Varna’s.
This clearly shows that a Brahman is entitled to marry anyone he wants but other castes have restrictions because of the supposed superiority of Brahmins. A man who has intercourse with a woman upper than his caste used to be liable for death penalty. This clearly implies that having sexual relations with a woman of upper caste was seen as equal to committing a heinous crime, as is made clear by the harsh punishment.
Having sex with a cow (and any other forms of zoophile) and a woman of lower class were considered as an offence having the same intensity and had the same middle range penalty.
The fact that these two cases had equal penalty restated that fact that ‘lower caste’ were considered very inferior and not worthy of having a sexual relation with a person of relatively upper class. A lower caste woman was considered equal to a prostitute, someone who is in control of others, slave and abandoned and sex with all of these women were forbidden. A person caste clearly accounted for their social position in the society. All the children born by a woman of higher caste with a man of lower caste were termed as Pratiloma (from unapproved marriage) and it was written that the king must protect particularly the women in society against Barnasanskar (mixture of castes). People of different castes were seen as having different levels of purity and status in society and any mixture among these castes were strictly forbidden, which reinforced caste-based discrimination.
Furthermore, it is stated that a Brahmin is forgiven for death penalty no matter how severe crime he has committed whereas other castes might get death penalty considering the intensity of crime. Brahmins were never capitally punished and the most severe punishment that they were given was imprisonment for life with hard labor and degradation from caste. This clearly shows a form of prejudice for Brahmin and they are shown to be the entitled sacred caste that is immune to the highest degree of punishments. Such forms of immunity and titles gave Brahmans a sense of entitlement and superiority, which exacerbated caste discrimination.
Additionally, it is explicitly stated that a lowest grade man is like stools of a man. In case a Sudra assaults a Brahmin, they are given death penalty whereas Brahmins are only required to pay Twelve Pana for insulting a Sudra. This shows a major disparity in the treatment of different castes and sheds a light on how the people of lower castes were systematically exploited and disadvantaged during that time. Low caste people were considered to be untouchables and the supposed higher caste people would not accept food or water offered by them. If a low caste person pretends to belong to a higher caste and deceives a person of higher class to take water or food from his hands, he would be given a heavy fine, or imprisonment, or confiscation of his entire property. This practice of UN touch ability implies that there was heavy caste-based discrimination during that period.
The law also forbids a man of Low caste to sit on the same seat of Brahman or higher castes. In case he does sit with them, he should be branded on the hip and banished or he should have his two buttocks cut off. This is a major instance of caste discrimination because such severe form of punishment just for sitting behind a Brahman is very harsh. It is claimed that caste-based discrimination was slowly banned after the rise of King Jayasthithi Malla.
Caste-based discrimination in present context
The Constitution of Nepal 2072 clearly forbids all form of discrimination, including caste-based discrimination. Article 18 of the Constitution of Nepal provides right to equality to all citizens. Article18 (1) 7 considers everyone to be equal before law and equally protected by the law. Article 18(2) 8 clearly states that no discrimination shall be made in the application of general laws on the ground of caste or on similar other grounds. Article 18(3) 9 states that there will be special provisions by law for the protection, empowerment or development of the citizens including the socially or culturally backward women, Dalit, indigenous people, indigenous nationalities, Madhesi, Tharu, Muslim, oppressed class, Pichhada class, minorities, the marginalized, farmers, labors, youths, children, senior citizens, gender and sexual minorities, persons with disabilities, persons in pregnancy, incapacitated or helpless, backward region and indigent Khas Arya. This clearly shows that not only has caste-based discrimination been forbidden in present time, various provisions have instead been made to uplift the historically ‘lower caste’ people. People of all castes must face the necessary repercussions for their actions. Individuals and collective groups cannot show any form of prejudice on the basis of caste and other social variables. There is no caste-based requirement for marriage and relationships and most importantly, anyone who violated other right to equality is penalized. However, some forms of caste-based discrimination still exist in present time, despite it being forbidden by law. For instance, Dalits, who fall outside the four-fold caste system, are still considered as the subordinate caste and are neither sufficiently represented neither in the political party structure nor in the governance mechanism. Nevertheless, it can be assumed that there is little to no caste-based discrimination in present time, except a few exceptions.
Legality of any action strictly dictates people social values, norms and actions and laws correspondingly also reflect the current social values of a particular time. Thus, the comparative study showed that caste-based discrimination was practiced legally during the Malla period, legitimized through Manav Nyaya Sastra, whereas it has been prohibited in Nepal since the 21th century, through the Constitution. It has been claimed, however, that practices of caste-based discrimination was banned after the rise of King Jayastithi Malla in the Malla period. So, it can be safe to assume that although caste-based discrimination was institutionalized during the Malla period, it was merely a product of the social structure of that time and that the practices of caste-based discrimination were discouraged by the Malla themselves. However, this paper is merely an analysis and any firm conclusion cannot be drawn alone through this. There might be other social variables such as morality, class and gender that might have affected the treatment of people of various castes.
The comparative study established that caste-based discrimination was widespread during the Malla period whereas it has significantly decreased in the 21st century, as the legal system and corresponding codified laws have been amended over time as to not propagate any form of discrimination. People of so called ‘lower caste’ were heavily discriminated in the Malla period. Brahmins were explicitly considered to be the most superior caste and Sudras as the most inferior one. Castes in the lower side of the hierarchy were hence structurally disadvantaged and discriminated in most areas of life, through heavy restrictions, lower status in society and harsh punishments.
In the present context, however, everyone is considered equal by the law, in all aspects. Anyone who practices or encourages caste-based discrimination is punished. Instead, notions of positive discrimination are present in the present constitution, in order to empower the historically disadvantaged and discriminated groups.
(Mishra is the BALLB 1st year student of Kathmandu School Of Law.)