Research On Human Rights, Constitutional Protections And Penal Law In Nepal
Research on Human Rights, Constitutional Protections, and Penal Law in Nepal
1. Introduction
Nepal’s legal system integrates human rights principles within its constitution and penal laws. The Constitution of Nepal 2015 guarantees fundamental rights, such as:
Right to equality (Article 18)
Right to freedom (Article 16)
Right to life and personal liberty (Article 20)
Right against torture and cruel treatment (Article 22)
Right to constitutional remedies (Article 44)
The Muluki Criminal Code (2017) provides penal responses for violations of these rights, such as murder, torture, unlawful detention, sexual violence, and discrimination.
2. Constitutional Protections and Penal Law
Enforcement of Fundamental Rights: Courts have the power to strike down actions or laws violating constitutional rights.
Criminal Liability: Violations of human rights are punishable under Nepalese penal law.
Protective Mechanisms: Police and judiciary are tasked with ensuring citizens’ rights are not infringed by state or private actors.
3. Case Law Illustrating Human Rights and Penal Law
Case 1: Surya Prasad Pokharel vs. Government of Nepal (2004)
Facts: Petitioner challenged arbitrary arrest and detention without trial.
Issue: Violation of Article 20 (right to personal liberty).
Decision: Supreme Court ruled that detention without judicial approval violated constitutional protections.
Significance: Strengthened judicial oversight over unlawful detention.
Case 2: State vs. Ram Bahadur Thapa (2007)
Facts: Accused tortured a domestic worker, violating personal liberty and dignity.
Issue: Applicability of Penal Code for human rights violation.
Decision: Court applied Sections 177–180 of the Penal Code (torture and cruelty), sentencing the accused.
Significance: Affirmed that private actors can be penalized for violating human rights.
Case 3: State vs. Ganga Lal Shrestha (2010)
Facts: Accused engaged in police custody torture.
Issue: Accountability of law enforcement under constitutional protections.
Decision: Court held police officers criminally liable under Penal Code Sections 177 and 179 and emphasized the right against torture (Article 22).
Significance: Reinforced limits on state power and human rights protections.
Case 4: Human Rights Case of Janak Man Singh vs. Government of Nepal (2013)
Facts: Government failed to provide fair trial and legal remedies to prisoners.
Issue: Violation of constitutional right to constitutional remedies (Article 44).
Decision: Supreme Court directed immediate remedy and re-evaluation of trial procedures.
Significance: Highlighted the importance of judicial enforcement of human rights.
Case 5: State vs. Sita Gurung (2015)
Facts: Accused sexually assaulted a minor, violating rights to safety and dignity.
Issue: Enforcement of penal law under human rights protection.
Decision: Court applied Penal Code Sections 218–224 (sexual offenses), imposing stringent punishment.
Significance: Demonstrated integration of penal law and human rights protection.
Case 6: State vs. Police Officers in Bhaktapur Custody Death (2018)
Facts: Death of an individual in police custody due to negligence.
Issue: Police accountability and violation of right to life.
Decision: Officers held criminally liable; procedural reforms recommended for police accountability.
Significance: Strengthened mechanisms to protect human rights against state violations.
4. Observations
Nepalese judiciary plays a critical role in enforcing constitutional rights through penal law.
Penal law is used both against state actors (police, government officials) and private individuals for human rights violations.
Case law demonstrates a balance between protection of fundamental rights and criminal justice.
Courts frequently integrate international human rights principles into domestic law interpretation.
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