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The KP Sharma Oli administration’s decision to implement new legislation in Nepal aimed at controlling social media has encountered strong backlash, as supporters of free speech caution about significant risks to freedom of expression within the nation.

Communications and Information Technology Minister Prithvi Subba Gurung submitted the “Bill Concerning the Operation, Use, and Regulation of Social Media in Nepal” to the Upper House of the Federal Parliament on Jan 28, which has created controversy, with opposition parties such as the CPN (Maoist Center), journalist organizations, and civil society groups fiercely opposing it. 

The intended Bill aims to ensure that the operation and use of social media platforms are organized, safe, and systematic. Additionally, it aims to regulate these platforms by making both operators and users responsible and accountable “to foster social harmony and cultural tolerance.” 

Several aspects of the law are in conflict with Nepal’s constitution, and the use of ambiguous and incomplete terminology raises issues. Critics believe the government will use these loopholes to interpret the legislation in its favor. 

Another significant issue is the government’s direct participation as the plaintiff in all related cases, which gives authorities more power over how the law is defined and enforced.

Constitutional conflict over the Media Council Bill

The bill directly contradicts Articles 17 and 19 of Nepal’s Constitution. Article 17 preserves the right to freedom, declaring that “no one shall be deprived of personal liberty.” However, the bill goes beyond limiting personal freedom; it deliberately penalizes individuals for posting, sharing, liking, reposting, live streaming, subscribing, commenting, tagging, using hashtags, or referencing others on social media. 

Section 16(2) of the bill expressly forbids anyone from engaging in certain actions with malicious intent: “One must not post, share, like, repost, live stream, subscribe, comment, tag, use hashtags, or mention others on social media with malicious intent.” While the bill expressly criminalizes like or commenting, it fails to define “malicious intent,” making its interpretation problematic. Because the bill does not define the term’s scope or meaning, anyone charged under this clause could simply say, “I had no malicious intent,” making enforcement arbitrary and subjective.

The bill establishes a loophole through which government officials could potentially dodge accountability. If they violate the bill’s requirements, they can claim, “I did not act with malicious intent,” when the clause is triggered. It is uncertain whether they can evade blame.  The bill also has a provision for a fine of up to Rs 500,000. 

Furthermore, “ 19 of Nepal’s Constitution’ guarantees the right to communication, stating, “no prior censorship of publications and broadcasting, or information dissemination, or printing of any news item, editorial, article, feature, or other reading material, or the use of audio-visual material by any medium, including electronic publication, broadcasting and printing.”

Article 19(2) clearly states, “If there is any broadcasting, publishing or printing, or dissemination of news, article, editorial, feature, or other material through the medium of electronic equipment or the use of visuals or audio-visuals, no radio, television, online publication or any kind of digital or electronic equipment, or press, or other kind of media outlet, shall be closed, seized, or their registration cancelled for publishing, or transmitting, or broadcasting such material.”

However, the bill infringes this fundamental guarantee. Section 16(1)(a) of the bill recommends penalizing individuals for trolling photos. Where is the freedom to communicate?

Section 20 of the bill prohibits the release of confidential information, which is even more reprehensible. It will keep government defects, shortcomings, and pressing issues such as corruption, commissions, and bribery classified and concealed. If a journalist uncovers and exposes such information, they may face sanctions. This appears to be a clear implication. The government’s intention may be to conceal its weaknesses. It may seek to prosecute anyone who reveals such information.

The bill’s theoretical notion claims to “ensure the freedom of thought and expression as a fundamental right while safeguarding communication and confidentiality rights in electronic media,” however the reality appears to contradict this.

Malicious government intentions

Social media must be regulated in a number of areas. The bill does not simply contain negative provisions. However, the provisions described above violate citizens’ (users’) rights to free expression, privacy, and communication.  Furthermore, it appears that the government is contemplating using the social media bill to silence and punish its critics. Section 28 of the bill discusses the concept of “metered punishment.”

Section 28(2) of the bill specifies that “any offender who commits an offense more than once under this Act will receive double the penalty for each subsequent offense.” This means that the punishment will compound and escalate with each transgression of law. The bill appears strange. This is why many people have questioned the purpose of its construction. The punishment provisions are incredibly strange.

Is freedom of expression truly free?

In Nov 2024, freedom of expression on social media and the right to talk without fear of repercussions from the state became even more apparent. The event involving Ratan Karki, a Nepali student in Japan, demonstrated this even more clearly. Karki shared a contentious video on TikTok.  Although he made the video for fun, it might readily be believed that it was directed at the Prime Minister. Nonetheless, it was interpreted as a threat. 

Despite the fact that the video was intended to be a joke, officials are believed to have taken quick legal action. The fact that the state has issued an arrest warrant through Interpol in response has sparked interest. This demonstrates that even lighthearted disagreements can entail major risks. Similarly, Mohammed Zubair, a journalist and co-founder of Alt News, was arrested in India, highlighting the dangers that online activists and journalists confront. He was arrested for tweeting a criticism of the government and charged with “hate speech.” He had simply revealed misinformation. 

Nonetheless, he faced legal consequences. His detention and following legal battle have underlined the risks of criticizing the government under one’s true identity. It emphasizes the importance of using pseudonyms to defend one’s freedom of expression.

Is the role of government to ensure security or to stifle dissent?

The Social Media Bill is intended to protect users from cyberbullying and bogus news. However, it may accidentally silence the views of activists, marginalized groups, and people who use pseudonyms or anonymous IDs for personal security.  The bill’s broad and imprecise language, which might be used as a weapon against people who oppose the government, threatens silencing already vulnerable groups. This bill could make things much more dangerous for people who are already subjected to prejudice, abuse, and violence. It could also be used as a weapon by the government to crush dissent in the name of national security and integrity. 

Instead of providing a secure and open digital environment, such a legal system may exacerbate power disparities, pushing people from violent areas to keep silent or fight underground. While the government’s concern in combating misinformation is understandable, the extent of the measure raises serious concerns. That is, “Who is the government afraid of introducing this bill?”

If the bill is intended to safeguard citizens from dangerous content, why does it target those who use pseudonyms or false identities, particularly activists fighting for underprivileged communities?

Conclusion, in the digital age, where personal and collective identities are rapidly being formed online, the right to anonymity is critical for individual privacy and security. Nepal must acknowledge the value of this right and keep digital spaces accessible, inclusive, and free of surveillance and censorship. We must prioritize protecting the voices of the most vulnerable, those who use pseudonyms to express their opinions, campaign for change, and fight for their rights.

The constitution-making process is a crucial opportunity to restructure the governance system. It’s been nearly a decade since the promulgation of Nepal’s Constitution, and throughout this exercise, the three branches of government— executive, legislative and judiciary—have faced controversy and criticism. Future constitutional practice in Nepal will likely be more complex and demanding as it appears that the judiciary, which is required by the constitution to act in accordance with the constitution by judicially reviewing the unlawful and unconstitutional acts committed by other state organs, is losing its capacity to carry out its duties.

It is undeniable that the judiciary will play a significant role in strengthening, maturing, and advancing the constitutional jurisprudence and constitution through development, as our constitution, which was enacted with the rule of law and constitutional supremacy, tries to amend the governance system and constitutional practice through mainstream consensus while remain within the limits of the constitution.

The constitution is said to be a reflection of the society’s consciousness. The necessity of developing, reforming, and amending the constitution becomes apparent when there is a shift in societal consciousness. Constitutional reforms are also necessary to end the flaws or skewed practices observed during the constitutional practice. Only issues concerning the judiciary or the constitution have been addressed in this article.

Structural reform matters 

The preamble of the Constitution of Nepal envisions an independent, impartial, and competent judiciary, while Article 126 ensures that Nepal’s justice-related rights will be exercised only by courts and judicial bodies in accordance with the legitimate principles of the Constitution, law, and justice. Courts and judicial bodies are the only entities that can exercise justice-related rights.

The way for maintaining the judiciary’s independence and competence is that, because the judiciary has the right to judicial review of executive and legislative acts, it is recognized that it should remain independent and competent under all circumstances. Because the executive and legislature primarily challenge the judiciary’s independence, the standards of independence should be determined by the constitution itself, and our constitution has adopted the necessary constitutional provisions.

Constitutional Council

The Constitutional Council, chaired by the Prime Minister, advises appointments for the Chief Justice and other constitutional organs. This sacred objective has been nearly destroyed by constitutional practice so far, raising issues about the fundamental concept of an independent judiciary, and there is an urgent need for reassessment. The following are the grounds for the necessity to change the current structure of the Constitutional Council:

It has been demonstrated in practice that when the court makes judgments alongside the government and the legislative, it is impossible to achieve the constitutional goal of an independent, competent, and effective judiciary. The judiciary’s ability to review decisions made by other branches of government has become apparent.

The principle of a transparent and independent trial, as well as natural justice, have been violated because a bench, including the Chief Justice, is required to evaluate the legitimacy of the decision and the judicial procedure. 

On the other hand, due to Chief Justices’ unwillingness to face such issues or their desire to step down, or for various concealed factors, such disagreements could not be settled for a long time, raising concerns about the judiciary’s efficiency.

It has been revealed that the Chief Justice’s position in the Constitutional Council forces the Executive and Legislative branches, as well as the Judiciary, to exercise undue influence or, in some instances, make transactions with those organs, agencies or persons.

The judiciary, like other organs of the state, will be discredited. If this constitutional clause is not addressed promptly, public trust in the court will decline further, and democracy will undoubtedly suffer. As a result, it appears unavoidable that the Constitution be altered to separate the Chief Justice from the Constitutional Council.

Judicial Council

It is necessary to modify the Judicial Council's current structure as well because it is not capable of fulfilling its constitutional mandate, which calls for it to recommend judges for appointment to all levels of government and to take disciplinary action against judges of courts other than the Supreme Court. The reasons behind this can be stated as follows:

• The recommendation process for the appointment of judges is non-transparent, the merit system cannot be adopted, the judicial council is influenced by political pressure, complaints against judges are not processed on time, all four areas of the appointment of judges frequently express dissatisfaction with the appointment, and the judicial council's decisions and actions are not implemented. Dissatisfactions are expressed during the appointment, claiming that relatives, nepotism, favors, and temptations have usurped their position.
• This framework appears to be failing to meet constitutional objectives because standards are sometimes set in the appointment of judges, sometimes they are postponed, and rules are changed based on the individual.
• The Judicial Council's performance is considered low because it is not accountable to Parliament, the Judiciary, or the Constitution. As a result, the constitution must be reviewed by changing the structure of the judicial council and appointing a majority of judicial leadership, recommending the appointment of judges from the collegium system in which Supreme Court judges participate, as is the case in India, or by exploring alternative approaches.

Parliament hearing

Parliamentary hearings on the proceedings of the Chief Justice and Supreme Court judges have had a negative impact on the notion and practice of an independent judiciary, as well as jurisdiction. 

The parliamentary hearing is a political process that cannot be completed without the involvement of the political level. As political involvement must be demonstrated, those who are recommended to pass the parliamentary hearing stage expect the backing of the political sector, and the political sector has different expectations of the recommended individual. 

The course of parliamentary hearings appears to be in threat of being a negotiation point between the political and judicial branches. This has eroded the core notion of an independent judiciary. 

Thus, in the case of the Chief Justice and Supreme Court judges, it is appropriate to review the current constitutional provision regarding parliamentary hearings and implement the public hearing method process recommended by the judicial council that makes the appointment recommendation. 

High Court

According to the phrases and terms used in Articles 133 and 144 of the Constitution of Nepal, the High Court, in addition to determining the validity of laws, has the same authority to exercise extraordinary jurisdiction as the Supreme Court. However, even now, it appears that the high courts are unable to completely exercise their jurisdiction.

In some circumstances, the High Court’s appear to be simple continuations of the earlier Appellate Courts. The appointment of judges, qualifications, as well as the study and skill of legal practitioners, all contribute to this.

But basically, from the standpoint of expanding extraordinary jurisdiction to the High Court like the Supreme Court, it has become unavoidable to review the constitution and provide the High Court with the power.  

This reduces the Supreme Court's workload while simultaneously simplifying and speeding up the administration of justice. Likewise, by establishing the High Courts as Supreme Courts or Courts of Record, such as the High Courts of India or other federal countries, it should be ensured that the judicial principles advanced by the High Courts are binding on the District Courts or other judicial bodies subordinate to them. 

Impeachment process

The Constitution’s Article 101(2) states that the House of Representatives may impeach the Chief Justice of the Supreme Court and other judges with a two-thirds vote. However, in certain instances, this power has been misused and the House has been unable to demonstrate its impartiality in other situations.

In India, six judges, including the Chief Justice, have faced impeachment, but to this day, they have not been impeached. According to Article 124(4) of the Constitution of India, if the Chief Justice or a judge of the Supreme Court is impeached by a two-thirds majority of both the Federal Houses on the grounds of misconduct and incompetence, the judges of the Supreme Court shall not be dismissed from office except by the President.

On the other hand, it has become necessary to review the current constitutional provisions and create a constitutional arrangement to swiftly resolve the related provisions enrolled against the Chief Justice and judges, as the House of Representatives' impeachment proposal has been delayed for a long time due to political wrangling.

In conclusion, the judiciary’s structural reform is now essential. The aforementioned issues, as well as any other subjects, can be the focus of structural reforms.

A consumer is an individual or entity that purchases or consumes goods and services for personal use or to satisfy their wants and needs. Examining the pattern of consumption, all individuals or organizations in society act as consumers in some form, as the seller or provider of a product or service. Every individual is covered by consumer protection laws. So it is important to understand that safeguarding consumer rights is safeguarding the rights of all individuals in society.

In Falgun 2078, Nepal’s Supreme Court ordered the government to set up a consumer court in all seven provinces to defend customers' interests in the face of recurring allegations of unfair market practices. A division bench of Justices Bam Kumar Shrestha and Nahakul Subedi said in their decision: “... with the necessary coordination with the relevant stakeholders, if further study-research is required, the consumer court as per Section 41 of the Consumer Protection Act, 2075 should be formed as soon as possible.” 

However, there isn’t any indication yet of a consumer court being established in any of the country’s seven provinces.

Consumerist movement’s background and development

Ralph Nadar, the leader of the consumerist movement, started the consumer protection campaign for the protection of basic rights related to the daily life of individuals. Consumer rights are viewed as a fundamental aspect of human rights due to their connection to the overall quality of life. Consumer rights advocate for consumers to have access to high-quality goods and services, offered at the right time, price, and with convenience.

Since the beginning of the 19th century, many countries have become more aware and vocal regarding consumer rights protection. For the first time in the world, the United States of America enacted the Consumer Rights Act in 1962. US President John F Kennedy was the first person to raise his voice regarding consumer rights. He mentions four types of consumer rights: safety, quality, choice, and information.

Consumer rights in a federal system

The constitution serves as both a crucial principle for governing the state and a key document ensuring all the rights of its people. Establishing coordination between the ruler’s jurisdiction and the people's rights is also accomplished through the constitution. The constitution plays a crucial role in ensuring a balance between the governing authority and the governed. It serves as a legal tool to provide direction to the government, grant authority to the government, and oversee the use of that authority.

The Constitution of Nepal, 2015 provides the basic legal structure for protecting consumer rights. Consumer rights are recognized as a fundamental right in Article 44 of the Constitution, which ensures the right to obtain quality goods and services and to be compensated for any violations of these rights. Consumers are also sovereign parties who are related to all three levels of government, so it is necessary to have mutual coordination in laws, structures, and data systems.

The Consumer Protection Act, 2075 guarantees consumer rights, outlines seller and distributor liabilities, and enforces regulations for the goods and services supply chains. Section 41 of the Constitution establishes the existence of a consumer court, while section 50 addresses the process for seeking compensation.

Institutional arrangement

The Consumer Protection Act, 2075 provides for the formation of a 15-member Consumer Protection Council under the chairmanship of the Minister of Industry, Commerce and Supply. Its main task is to formulate policies on the protection and implementation of consumer rights. Similarly, under the chairmanship of the Secretary of Industry, Commerce and Supply, there is a nine-member central market monitoring committee, whose main task is to coordinate among the agencies involved in the monitoring or supervision of the supply of goods or services, price, quality, and purity for the protection of consumer rights.

Provincial and local levels have also been given the responsibility of consumer interest protection and market monitoring. For this, there is a legal provision to form a provincial monitoring committee and a local market monitoring committee.

Furthermore, at the district level, district administration offices and industry, commerce, and consumer protection offices have been made responsible for consumer protection. The consumer association is also directly involved in consumer protection. For cases other than section 40 (1) of the Consumer Protection Act, 2075, there is also a provision for a three-member consumer court with a district judge and two deputy secretaries of justice services.

Consumer court holds significance in Nepal

A consumer court is a specialized court that focuses mainly on resolving consumer-related disputes, conflicts, and complaints. The court convenes hearings to settle these matters. For a while now, people have been requesting a consumer court to hold dishonest traders accountable through a quick legal process.

Observers claim that unscrupulous traders have become more confident as consumers avoid becoming entangled in complicated legal battles, especially at the Supreme Court. According to them, once consumer courts are in place, it will be simpler to lodge complaints and there will be less inconvenience.

The establishment of a consumer court is essential in order to prevent actions that harm consumers and hold those responsible accountable. There is a need for the prompt establishment of a consumer court to take legal measures against individuals who harm the well-being and health of the less fortunate by manufacturing and distributing inedible goods. Consumers are not aware of their rights. Raising awareness about consumer rights is essential.

In a nutshell, Nepal must take immediate steps to establish a consumer court to protect the rights of its citizens. The government must prioritize this issue to ensure that consumers are protected and have access to swift and effective legal remedies. With the establishment of a consumer court, consumers in Nepal can have confidence that their rights will be protected, and that they will be able to seek compensation and legal remedies without unnecessary delays or hurdles.

A university is a center for brainstorming, exploration and processing of knowledge. Data from around the world have confirmed that quality university education plays a major role in laying the foundation for the development of economic and strategic might of countries. 

Of late, Nepal's higher education and universities have emerged as a topic for a discourse, thanks to a declining state of these institutions and a subsequent surge in the number of students heading abroad for higher education.

University education started in Nepal in 1959 with the establishment of the Tribhuvan University (TU). Sixty-five years later, we continue to lag behind in almost all sectors because of our inability to utilize our universities in the interest of the country, an inability which has a role in rendering the state dysfunctional. This article mainly seeks to explore the reasons behind a sorry state of affairs in our universities by looking into the advent of university education in brief.  

The legacy

Modern university education dates back to the 11th century. At the end of the 11th century, the University of Bologna ‘Studium’ took shape in Italy, followed by the University of Paris in France (1150) and a number of universities across European countries. These centers of higher learning began focusing on scientific research, heralding a new dawn in the development of science and technology and strengthening as well as expanding the state. Through the technological prowess that flowed through these universities that propagated university education globally, Europe established its empires around the world over the centuries. 

Western varsity in Asia 

The Western model university came into being in Asia with the establishment of the University of Calcutta in 1857 under British rule. In its early days, the varsity showed a lot of promise, producing world-renowned scientists and economists such as CV Raman, Chandrasekhar, Ramakrishnan, Hargobind Khorana and Amartya Sen. But the varsity failed to pave the way for diversified research, a predicament no different from that of the TU.

However, Japan, another country in Asia, started its educational cooperation with Europe in 1877 with the establishment of the Tokyo University. Japan has not only become an economic superpower in a short period of time on the strength of new science and technological development, but is also competing with the West in the field of creative intelligence and producing dozens of Nobel Prize winners. 

This university has established itself as an institute capable of solving problems of a fast-changing world. Interestingly, Nepal was under the rule of Jung Bahadur at the time of establishment of universities in Calcutta and Tokyo. The Rana ruler had a cordial relationship with the British Empire, but did not bother to use this leverage for introducing university education in Nepal. Thanks to this myopia, university education got delayed in Nepal by about a century. 

A decisive push for reforms

A review of world history shows a number of countries shifting focus on university reforms after overcoming internal/external conflict and achieving a level of national prosperity. 

In the case of Nepal, even decades after the establishment of its first university and several other universities, no meaningful effort has been made to transform them into centers of knowledge and innovation. Political interference, measly investments from the state, weak standards for faculty selection and incentives are mainly to blame for this. 

Unchecked political interference has been taking a toll on university education for decades and institutionalizing mismanagement. Here, professors accused of serious academic charges like intellectual theft get appointed as vice-chancellors, thanks to their political clout and a chauvinist professor gets beaten by chauvinist students on the university premises! It’s obvious that those who landed leadership roles through political connections do not count. Our universities need to undergo reforms for which they need a non-political academic leadership with a credible ground action plan. The state should immediately take concrete steps toward this end by keeping politics away from universities.