September 2021 Analysis: Gender, Social Inclusion and Human Rights

Posted by : Niyati Adhikari


Date : 2021-10-29

This month saw discontentment regarding the expiry of an important ordinance on punishment for gender-based violence due to prolonged political deadlock and politics of consensus. Increasing number of rape cases against woman and child marriages were also reported. It was observed that minor girls aged 16-17 years were the victim of rape and women from marginalized community- Dalit, Musahar and Dom were more likely to become the victim of child marriage. Additionally, two subsequent issues related to child marriage’s also made headlines. First, unregistered births of child born out of child marriage. Second, children being denied enrolment in school for a lack of birth certificates.

Timeline of the major events

Date Event
September 7 Nine men arrested for raping a 16 year old girl
September 11 Three individuals arrested on the alleged charge for gang-raping a 18 year old girl
September 12 21 years old man sentenced to 12 years jail for raping a 16 years old girl
September 12 A case of ‘attempt to rape’ was mediated by the village elders.
September 15 Police have arrested two persons on the charge of raping a minor girl.
September 17 Delay in approval of ordinance has lapsed the ordinance to tackle crime and punishment of sexual violence against women/girls
September 15 Media Reports: Child marriage is rampant and continues to worsen in the country.
September 17 Media Reports: Early marriage threatens the lives of adolescent mother and infant.
September 19 Demonstration on Constution Day, demanding amendment to the Constitution as it has failed to protect the human rights of Janjati, Dalit, Madeshi, Women and other marginalized communities.
September 25 Media Reports: Children born from underage marriage lack birth certificates and are deprived of education.

Political Deadlock Resulting in Expiry of Ordinance

Consensus between political parties on democratic values is imperative for successful implementation of constitutional provisions. In Nepali politics, political expediency and powerplay has always superseded the rule of law revealing mockery of democracy. Recent political turmoil in the parliament led to a government shutdown. In addition to that, continued protest by the oppositions has led to delay in the approval of important ordinance to tackle punishment for rape and acid attack. The political deadlock led to the ordinance lapsing in the parliament after failing to be ratified within 60 days of being presented to the House. Expiry of critical ordinance leads to legal vacuum. We dissect this issue by connecting it with the recent events of rape cases against minor girls and the incident of out of court settlement.

Rape and Out of Court Case Settlement

Increased number of cases of rape against the minor followed by series of rape case settlements by the local village authorities, led to the government of Prime Minister K P Oli sign an ordinance on November 2020. The ordinance aimed to amend the laws on sexual violence by increasing the penalty in the National Criminal Code, 2074. The ordinance also stipulated three-year jail terms for those attempting to settle rapes cases out of court.

Recent data has shown the cases of rape have increased against minor girl between 16-17 years. A recent news on settlement of rape case by the local village authorities, against the will of the victim, has also come to light. The practice of settlement of rape cases by mediation has resulted in a young woman committing suicide due to harassment. Out of court rape settlement has also encouraged the culture of impunity for the perpetrator. This impunity not only allows such atrocities against women to continue, but it also erodes public faith in the legal system. Women Rights Activist Tika Dahal, states that “inability to pass these ordinances by the government means that that fewer women will come forward to lodge complaints of rape”

This ordinance could have been a positive deterrent measure in minimizing the heinous crime against women and restoring the faith in the legal system.

Child Marriage Continued to Rise up the Fiscal Year 2020-21

The recent data confirms that 84 cases of child marriage were reported in the fiscal year 2020-21 against 64 in 2019-20; an increase by 31.25 per cent.

The minimum age for marriage in Nepal for both women and men is 20. Although the Child Marriage was abolished in 1963, the practice is still rampant, especially in the rural areas and amongst Dalit communities. Human rights groups accuse the government for failing to take sufficient steps to end the practice.

Birth Registration, a Fundamental Human Right

Child Marriage takes a toll on the young women and their children for life. Most marriages and the childbirths from these marriages remain unregistered. Women from marginalized community – Dalit communities, Musahar and Dom are forced to get married at an early age to ease their parents’ burden. Most marriages and births in these communities are unregistered, and as a result, a large number of people are deprived of education, child nutrition allowance, Dalit scholarship, citizenship and social security allowances.

The existing legal provisions stipulate that the guardians must furnish their children’s birth certificates while seeking admission at schools. But children born out of underage marriages are not registered during birth and therefore, have no legal identity. Consequently being denied the right to education.

This is a classic example of how violations of one right can impinge on the realization of other fundamental rights enshrined in the Constitution of Nepal, 2015. Right to Citizenship guaranteed by Article 10, as a part of right to live with human dignity can be linked with right to equality, right against discrimination, right to education, right to social justice and security. Thus, birth registration is a human right that opens the door for enjoyment of other rights including education, health care, participation, and protection.

One of the important aspects of the state obligation from the standpoint of citizens’ security is eliminating impunity and preventing the recurrence of abuse and human rights violence especially against vulnerable and marginalised communities. However, in the absence of good governance, the state cannot implement positive and specific measures in response to its obligation.