Research On Secularism, Freedom Of Expression And Penal Law In Nepal
Legal Background
1. Secularism in Nepal
The Constitution of Nepal (2015) declares Nepal a secular state (Article 4).
Secularism means religious and cultural freedom, including protection of religions and cultures handed down from time immemorial.
Nepal’s secularism has a unique characteristic: it allows freedom of religion but places restrictions on conversion and activities that may “jeopardize the religion of others.”
2. Freedom of Expression
Article 17 of the Constitution guarantees freedom of opinion and expression.
However, this right is not absolute; reasonable restrictions exist for national security, public order, morality, or protection of the rights of others.
Penal law (e.g., the Criminal Code 2018, Electronic Transactions Act) criminalizes defamation, insult to religion, and spreading misinformation, among others.
Case Law Examples
Case 1: Supreme Court, Full Bench on Electronic Transactions Act (2024)
Facts:
The petitioner challenged provisions of the Electronic Transactions Act, claiming they violated freedom of expression by imposing fines and imprisonment for online content.
Legal Issues:
Whether the penal provisions of the Act unconstitutionally restricted freedom of expression.
What constitutes “reasonable restrictions” under Article 17(3) of the Constitution.
Decision:
The Supreme Court held that freedom of expression is not absolute. Restrictions are valid if they serve a legitimate purpose, are proportional, and clearly defined.
The Court upheld the provisions, emphasizing the need to balance rights with public order and morality.
Significance:
Established jurisprudence on balancing online expression and legal restrictions.
Set limits on unregulated online content while acknowledging freedom of opinion.
Case 2: Supreme Court on Media Criticism and Contempt (2021)
Facts:
A media outlet published reports on a Chief Justice, which the judiciary claimed amounted to contempt of court.
Legal Issues:
Does fair criticism of the judiciary fall within freedom of expression, or is it contempt of court?
Decision:
The Court ruled that fair reporting and commentary on judicial actions do not constitute contempt.
Malicious or false reporting intended to obstruct justice can be punished.
Significance:
Affirmed the media’s role in accountability.
Demonstrated the limits of expression regarding institutions.
Case 3: Sidhakura Online / “Dark File” Online Content (2024)
Facts:
A digital platform published false and misleading content about the judiciary.
The government charged the editor and publisher under contempt provisions.
Legal Issues:
Can online content be penalized under existing contempt and expression laws?
Decision:
The Court found the content false and misleading, sentencing the publisher and editor to imprisonment (with reductions for apologies).
Emphasized verification of sensitive content before publication.
Significance:
Highlighted accountability in online expression.
Clarified penal law application to digital media.
Case 4: Conversion and Secularism – Mendes Case (1989)
Facts:
A foreign missionary and Nepali converts were prosecuted for proselytizing.
Legal Issues:
The balance between religious freedom and protection of religions “handed down from time immemorial.”
Decision:
The Court convicted the individuals, reasoning that Hinduism had special constitutional protection.
Acts of conversion that jeopardized existing religions were penalized.
Significance:
Illustrated the tension between secularism and minority religions in Nepal.
Showed penal law enforcing cultural protection under constitutional secularism.
Case 5: Press Regulation Provisions Quashed (2006)
Facts:
Certain provisions of the Radio and Television Broadcasting Act and the Publications Act allowed government censorship and license cancellation.
Legal Issues:
Whether government power to censor media violates freedom of expression and press.
Decision:
The Supreme Court struck down these provisions as unconstitutional.
Held that media freedom is protected under Article 17, and arbitrary government control cannot override it.
Significance:
Landmark for press freedom.
Demonstrated judicial protection of expression against executive overreach.
Analysis of Trends
Freedom of Expression vs Penal Law
Courts consistently hold that expression is not absolute.
Penal provisions are upheld if they aim to protect public order, morality, religion, or institutional dignity.
Secularism and Religion
Nepal’s secularism protects cultural/religious traditions from conversion or insult.
Penal law enforces restrictions on conversion, desecration, or defamation of religion.
Digital and Media Expression
Courts are extending traditional penal and contempt provisions to online media.
Fair criticism is protected; malicious, false content is punishable.
Judicial Balance
Nepalese courts balance rights of individuals (expression, religion) with societal interest (public order, morality, religion).
There’s ongoing tension between modern free expression norms and cultural/religious protections.
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