Introduction

Speak for your rights, speak for your dignity, speak for yourself, and speak against unlawfulness.

The notion of freedom of expression lies in the context that no one shall be left unheard and unspoken about what one feels and expresses. The pragmatism of political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse are but not limited to the limbs of freedom of expression. Freedom of expression entails one’s healthy and lawful expression against the odds. 

The right to freely speak and distribute one's opinions is a demand of European understandings on the State that originated in England under the common law traditions. The perception of establishing freedom of expression was drawn since the inauguration of freedom of press in the Virginia bill of Rights 1776 and French Men Declaration of the rights of men and citizen 1789. Before the Government of Nepal Act of 1948 was passed, there were no laws that specifically addressed the right to free speech. Article 32(a) of the act contained the provision of providing privilege to the member of parliament for anything said or vote casted during the session. The Interim Government of Nepal Act 2007 BS guaranteed the right to freedom of expression and opinion under article 16(2)(a). Since then every constitution and media laws enacted has labelled the right as a prominent one.  The repeated encroachment of the fundamental right enshrined under Article 17 of the Constitution of Nepal 2072, is an alarming threat to our commitment at the international as well as national level. The democracy and sovereignty vested in the hands of people is a procurement of thousands of lives and the longest of days. The recurring action of political elites encroaching on the right to hold opinion and expression without interference is always seen as a threat for the convenience of one’s own immunity. 

Threshold for the exception and its fitting usage in Nepalese context

ICCPR under Article 19(3) has provided two conditions as a means to restrict the freedom of expression which are: respect of the rights or reputations of others or to the protection of national security or of public order (ordre public) or of public health or morals. Under these exceptions state parties to the conventions are free to impose reasonable restrictions upon the right but no right shall be made the subject of jeopardy in the name of restriction. The threshold for exceptions is the presence of interference as provided by law with a legitimate aim to secure one of the exceptions.

Upholding the foggiest idea, there is a restrictive clause enshrined under 17(2) which can be summed as legitimate right of legislature to impose restrictions regarding the acts which may undermine the sovereignty, territorial integrity, nationality and independence of Nepal or the harmonious relations between the Federal Units or the people of various castes, tribes, religions or communities or incite caste-based discrimination or untouchability or on any act of disrespect of labour, defamation, contempt of court, incitement to an offence or on any act which may be contrary to public decency or morality. The restriction is placed in order to solicit the uninterrupted enjoyment of Right to privacy, right to religion, right to communication, contempt of court and right against discrimination. Section 47 of Electronic Transaction Act (ETA) further backs the restriction expanding the regime to electronic mediums and online publications.The exceptions are set with its limitations under crucial and sensitive topics yet there is a sense of political anarchism and misuse for personnel good when it comes to the restriction of the right in the context of Nepal. William Ernest Hocking in his work Freedom of the Press: A Framework Principle (1987) has rightly said, “Nothing could more describe a human failure than a man physically prolific whose ideas should count for nothing to his group or his time. A suppression of speech, in its more painful consequence, would be the mental sterilization of the community.”

Restriction of the right as a weapon for political elites in Nepal

On the occasion of Gaura Parva on 26 August, Prime Minister KP Sharma Oli, former Prime Minister Sher Bahadur Deuba, and Minister for Culture, Tourism, and Civil Aviation like authorities attended the festival’s celebration in Thudikhel. Amongst the crowd, few youths chanted slogans against Prime Minister Oli, and former Prime Minister Sher Bahadur Deuba. Former PM and leader of Nepali Congress Sher Bahadur Deuba was seen to be disturbed and unhappy by the slogans. 

He spoke from the stage itself directing towards the slogan chanting youths that, 

“Is this the manner you posses? Don’t you know how to behave?

Aren’t you ashamed of yourself, speak what you want to, it won’t bother me,

I will give my speech by any means” by saying this he continued with his speech.

The following day those two youths were arrested and were ordered to be kept in detention following the decision of District Administration Office Kathmandu (DAO) and were ordered to be prosecuted under the offense of breaching social harmony and peace. Later on, 30 August, they were released after paying a security deposit amount Rs. 9000 each. Similarly, two more youths were arrested on 27 August for writing status in facebook for raising questions against the activities of Former PM Deuba and Reigning Minister of Foreign Affairs, Hon. Aarju Rana Deuba. 

This instance is not the first of its kind, one of the popular female leaders Ram Kumari Jhakri of (NCP-UML) was arrested for dispensing some remarks upon the former president Bidhya Devi Bhandari. On a note of a similar incident, a youth was arrested for writing on Facebook that PM Oli is “corrupt”.  Police filed a chargesheet of cybercrime against the youth, as per the Electronic Transactions Act. He was released on Tuesday (3 September 2024) on bail pursuant to decision of Kathmandu District Court.  Similarly, a reporter at Makalu khabar was attacked for reporting on  10 July in Dhanusha news about corruption and irregularities in the Dhanauji rural municipality. In another instance police in Kanchanpur district of western Sudurpaschim province arrested Aishwarya Kunwar, a reporter for the privately owned news website Nigarani Khabar, and Puskar Bhatt, a correspondent for the privately owned broadcaster Mountain Television, following their reporting and social media commentary on allegations of police misconduct, according to the local advocacy organizations Media Action Nepal and Freedom Forum who were later released upon agreement. 

The notion of restriction and threat was not limited only to status but also was executed upon the folk song by popular singer Pashupati Prasad Sharma “Lootna Sake Loot Kancha” meaning “ you are allowed to do corruption to the extent you can in Nepal, which is restricted and unlawful elsewhere”. The song contained satirical lines, shadows tracking the national level incidents of corruption likes of ; inaction in well-known cases of corruption, such as the 33 kg gold smuggling case, the corruption surrounding the Airbus widebody procurement scheme, the President's new helicopter, and the government's inability to address basic issues like traffic lights. However, the song drew strong criticism from the ruling party NCP youth section, which claims the music is part of an oppositional  conspiracy by Nepali Congress party. Following the threat and conspiracy he took down the song within 48 hours. 

The annual freedom press report published by Freedom forum recorded 60 press freedom violation incidents from 1 May 2023 to 30 April 2024. In 60 violation incidents, a total of 88 media persons 77 male and 11 female journalists including 3 media houses were directly affected. This past year witnessed a rise in violations, as the previous year from May 2022 to April 2023, had only 40 incidents of violations which had affected 79 media persons including eight female and four media houses. Out of a total 88 media persons affected this year, 27 faced obstructions; 22 received threat and death threats combined; 3 faced arrest and detention; 25 attacked, and 11 misbehaved. Similarly, three media houses were attacked, and one vandalized. Two media houses were threatened and one was attacked for the published news. In the majority of  incidents, journalists (35) were affected by security persons followed by political cadres (14), government employees (13) and criminals / goons (7). Moreover, 19 media persons were affected by elements such as businesspersons, locals, contractors, etc.

Fig: Number of attacks upon the media house and modes of the attack

Source: Freedom Forum Nepal’s annual report on Freedom of Press in Nepal

The irony part of the advocacy for freedom of expression and restriction of the same is that, when the criticism is against the government the oppositions are seen standing tall with the sustained respect for the right enshrined under the fundamental law but in the other hand, when tables are turned around the opposition’s who were acting as safeguard becomes the autocratic rulers to encroach the same which is a daunting concern to the due respect and protection of the right. The recent instance of top-tier  political leaders raising concern and questions over the arrest of the head of Kantipur media group can be taken as a prime scenario of how the advocacy for the right and restriction works amongst the political elites. 

Cyber Bureau of Nepal police publishing a notice on 5th September has requested the social media users to respect the social harmony and peace by restricting the spread of misinformation and misuse of the same. Following the day of notice,a  youth was captured  by Nepal police under section 47 of ETA owing to his written statement in social media which included the concerns about the country's current scenario with criticism of the government and prime minister. However, observers are divided on the opinion that Section 47 of ETA has been continuously misused and interpreted against the accused and digital privacy and right to freedom of expression cannot be restrained following instances of political ups and downs.

Conclusion

Former Indian Chief Justice Patanjali Shashtri observed that, “Freedom of speech lays the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible. A freedom of such amplitude might involve risks of abuse”. 

Right to freedom of speech is a basic democratic right and is often regarded as the mother of all liberties. Freedom of speech guarantees everyone’s right to seek and impart knowledge without state interference, including the right to criticize the injustices, illegal activities and the incompetence of the government without fear of reprisal. Nepal as a party to ICCPR and the adherence to UDHR must refine its strategies on imposing reasonable restrictions upon the right. No provision of the mother law should be weaponized against the odds which restricts the enjoyment of the basic fundamental rights. Citizens should be made aware on the line of threshold of expression vs restriction and government as well as political elites should not fear from healthy criticism, instead the voices should be heard as a means to correct and change the drawbacks and campaign for a better political diaspora in future instances.