The Impact Of International Human Rights Law On Nepalese Criminal Procedure

16 Oct 2025 --
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🧭 1. Introduction

Nepal’s criminal procedure has been profoundly shaped by international human rights law, especially after the restoration of democracy (1990) and the adoption of the Constitution of Nepal, 2015.

Key international instruments influencing Nepal:

Universal Declaration of Human Rights (UDHR, 1948)

International Covenant on Civil and Political Rights (ICCPR, 1966) – ratified by Nepal in 1991

Convention against Torture (CAT, 1984) – ratified in 1991

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979)

Convention on the Rights of the Child (CRC, 1989)

These treaties have significantly influenced the Criminal Procedure Code, 2074 (2017) and judicial interpretation of the right to fair trial, right against torture, presumption of innocence, and procedural safeguards.

⚖️ 2. Constitutional and Legal Basis

Article 51(b)(3) of the Constitution of Nepal directs the state to implement international treaties to which Nepal is a party.

Article 133(1) empowers the Supreme Court to issue writs for enforcement of fundamental rights.

Article 20 ensures the right to fair trial, right to be informed of charges, right to counsel, and presumption of innocence.

Thus, international human rights norms are integrated into Nepalese criminal procedure both constitutionally and through judicial interpretation.

📚 3. Key Supreme Court Cases Illustrating the Impact

Below are six landmark cases showing how international human rights law has shaped criminal procedure in Nepal.

Case 1: Rajendra Dhakal v. Government of Nepal and Others

(NKP 2064, Vol. 6, Decision No. 7829)

Facts:
This case concerned enforced disappearances during the armed conflict. Families of disappeared persons sought judicial intervention for investigation and prosecution.

International Influence:
The Court heavily relied on ICCPR (Articles 6, 7, 9) and CAT principles, holding that the state has an obligation to protect the right to life, liberty, and security and to prevent torture and enforced disappearance.

Held:
The Court ordered the Government to criminalize enforced disappearance and to establish an independent investigation mechanism in line with international human rights standards.

Principle:
→ International human rights treaties are binding and directly influence domestic criminal procedure, especially regarding state accountability and due process.

Case 2: Advocate Rajendra Bhandari v. Government of Nepal

(NKP 2066, Vol. 9, p. 1289)

Facts:
The petitioner challenged prolonged pre-trial detention without charge as a violation of human rights.

International Influence:
The Court invoked Article 9(3) of the ICCPR, which requires that an arrested person be brought promptly before a judge and be entitled to trial within a reasonable time or release.

Held:
The Supreme Court ruled that prolonged detention without formal charge violates both Article 20 of the Constitution and ICCPR Article 9, directing the state to strictly limit detention periods and to ensure prompt judicial oversight.

Principle:
→ ICCPR principles are enforceable in Nepalese courts.
→ Fair trial and liberty are fundamental procedural guarantees.

Case 3: Advocate Madhav Kumar Basnet v. Ministry of Home Affairs

(NKP 2059, Vol. 8, p. 542)

Facts:
The petitioner alleged the use of torture in police custody and sought compensation and criminal action against police officers.

International Influence:
The Court cited Article 7 of the ICCPR and the Convention against Torture (CAT) to interpret the constitutional right against torture.

Held:
The Court directed the Government to enact specific anti-torture legislation and recognized that the prohibition of torture is absolute and non-derogable.

Principle:
→ International prohibition of torture directly shapes Nepalese criminal procedure.
→ Statements obtained through torture are inadmissible.
→ Led to the enactment of the Torture Compensation Act, 2053 (1996) and later provisions in the Criminal Code, 2074.

Case 4: Sita Acharya v. Government of Nepal

(NKP 2070, Vol. 4, p. 302)

Facts:
A woman alleged procedural discrimination in investigation and prosecution of gender-based violence.

International Influence:
The Court referred to CEDAW Articles 2 and 5 and the UN Declaration on the Elimination of Violence against Women (1993) to emphasize state duty to ensure gender-sensitive criminal justice.

Held:
The Court directed reform in investigation procedures to ensure protection of victims’ dignity and privacy, mandating female investigators and prosecutors in cases involving female victims.

Principle:
→ International gender rights norms have transformed procedural fairness and victim protection.
→ Procedural reforms must reflect equality and dignity.

Case 5: Yagya Bahadur Thapa v. Government of Nepal

(NKP 2071, Vol. 11, p. 671)

Facts:
The petitioner, accused of robbery, argued that his confession was extracted under duress and sought exclusion of that evidence.

International Influence:
The Court cited Article 14(3)(g) of the ICCPR, which guarantees the right not to be compelled to testify against oneself.

Held:
The Court held that confessions obtained by coercion are inadmissible, even if corroborated by other evidence, unless voluntariness is proved beyond doubt.

Principle:
→ The right against self-incrimination and protection from coercion have become core procedural safeguards due to ICCPR influence.

Case 6: Prakash Mani Sharma v. Government of Nepal

(NKP 2063, Vol. 5, p. 412)

Facts:
This case involved inhumane conditions in prisons and the lack of fair treatment of detainees.

International Influence:
The Court referred to ICCPR Article 10 and CAT, recognizing the right to humane treatment of prisoners and detainees.

Held:
The Court issued comprehensive directions to improve prison conditions, ensure access to healthcare, and separate undertrial prisoners from convicted prisoners.

Principle:
→ Human rights standards influence correctional and procedural aspects of criminal justice.
→ The judiciary ensures compliance with international obligations on humane treatment.

🧩 4. Thematic Impact Summary

Human Rights Principle	International Source	Nepalese Case	Key Impact on Criminal Procedure
Right to liberty and prompt trial	ICCPR Art. 9	Rajendra Bhandari Case	Limits on detention, judicial oversight
Right against torture	CAT, ICCPR Art. 7	Madhav Basnet Case	Ban on coercive interrogation, compensation law
Right to fair and impartial trial	ICCPR Art. 14	Yagya Bahadur Thapa Case	Exclusion of coerced confession
Right to humane treatment	ICCPR Art. 10	Prakash Mani Sharma Case	Prison reform directives
Gender equality in criminal justice	CEDAW	Sita Acharya Case	Gender-sensitive investigation procedures
State accountability for disappearance	ICCPR, CAT	Rajendra Dhakal Case	Criminalization of enforced disappearance

🧠 5. Conclusion

International human rights law has deeply transformed Nepalese criminal procedure, both substantively and procedurally.
Through judicial activism, Nepal’s Supreme Court has domesticated international norms, ensuring that procedural fairness, human dignity, and accountability remain central to criminal justice.