Research On Indigenous Rights And Penal Law In Nepal
Case 1: The Chepang Death Case (Raj Kumar Chepang)
Facts: Raj Kumar Chepang, a 24-year-old indigenous Chepang youth, entered a buffer zone of Chitwan National Park to collect snails, a traditional subsistence activity of his community. He was intercepted by army personnel, beaten, and released. He fell ill and died several days later.
Legal Issues:
Death caused by assault and negligence (Penal Code, Sections related to death by negligence and assault).
Violation of indigenous rights to access land/resources for subsistence.
Accountability of security forces in crimes against indigenous persons.
Judgment: The perpetrating army personnel were convicted for death by negligence and assault. The court awarded imprisonment and compensation to the family.
Significance: This case highlighted that indigenous persons could be disproportionately affected by criminal enforcement in protected areas, and it demonstrated that state actors could be held accountable under penal law.
Case 2: Devi Maya Tharu v. Nepal (Human Rights Communication)
Facts: Devi Maya, an indigenous Tharu woman, alleged that she was subjected to sexual violence by members of security forces. She claimed that Nepalese authorities failed to investigate her complaints effectively and did not provide her with a remedy.
Legal Issues:
Violation of the right to life, liberty, and security of person.
Torture and inhumane treatment.
Failure of the State to provide remedy or protection.
Discrimination based on indigenous status.
Judgment: The Human Rights Committee (HRC) found that Nepal violated multiple rights under the ICCPR, including the right to be free from torture and the right to equality before the law.
Significance: This case set a precedent that failure to protect indigenous persons from sexual violence can amount to a violation of penal law obligations and international human rights law.
Case 3: Bholi Pharaka v. Nepal (Forced Labour Case)
Facts: Bholi Pharaka, a minor from a Tharu community, was sent to Kathmandu for domestic work. She was subjected to forced labor, deprived of education, and mistreated. Her parents tried to seek remedy in domestic courts but received no relief.
Legal Issues:
Forced labor and exploitation under penal law provisions.
Violation of child rights and indigenous rights.
Lack of effective investigation and remedy by the State.
Judgment: The HRC held Nepal accountable for violations including forced labor, child exploitation, and failure to provide effective remedy.
Significance: Reinforced that indigenous minors are particularly vulnerable to exploitation and that penal law must protect them effectively.
Case 4: P. Tharu et al. v. Nepal (Arbitrary Arrests and Killings)
Facts: Members of the Tharu community alleged that during the Maoist insurgency, their family members were arbitrarily arrested, detained, tortured, or disappeared. One incident involved the detention of school-going children by security forces.
Legal Issues:
Violation of right to life, liberty, and security.
Arbitrary detention and torture.
Non-discrimination and protection for indigenous communities.
Judgment: HRC found Nepal had violated the rights of these individuals and recommended remedies including investigations and reparations.
Significance: Highlighted the vulnerability of indigenous persons in conflict situations and the need for penal law to safeguard them against arbitrary state action.
Case 5: Fulmati Nyaya Case (Child Sexual Violence and Forced Labor)
Facts: Fulmati Nyaya, a 14-year-old indigenous girl, was arrested during the conflict by armed personnel, subjected to sexual abuse, and forced into labor. Domestic remedies failed to protect her.
Legal Issues:
Sexual violence and torture.
Forced labor of a minor.
Lack of investigation and protection by the State.
Discrimination against indigenous persons.
Judgment: HRC found Nepal responsible for violations of multiple rights under ICCPR, including forced labor, ill-treatment, and lack of remedy.
Significance: One of the first cases recognizing forced labor and sexual violence against an indigenous minor in Nepal, emphasizing accountability and effective application of penal law.
Case 6: Indigenous Evictions from National Parks
Facts: Several Chepang and Tharu families were evicted from buffer zones of national parks in Nepal, criminalized for accessing traditional forest resources. Arrests and destruction of property were common, with limited legal remedy.
Legal Issues:
Penal law used to criminalize subsistence activities.
Violation of cultural and land rights of indigenous communities.
State accountability for abuse and illegal arrests.
Judgment/Outcome: Some soldiers were prosecuted in cases leading to death or assault, but most arrests and evictions were not adequately remedied.
Significance: Illustrates systemic criminalization of indigenous livelihoods and need for reform in penal law enforcement.
These six cases collectively demonstrate:
Patterns of vulnerability: Indigenous persons are often subjected to arbitrary arrest, custodial violence, or criminalization of traditional activities.
Interface of indigenous rights and penal law: Crimes like assault, forced labor, or custodial death intersect with broader human rights concerns.
Role of courts and international bodies: Both domestic courts and HRC communications are essential for securing remedies and accountability.
RELATED Blog
comments