KathmanduArticle 17 of the new constitution grants the citizens of Nepal “freedom of opinion and expression”. But there is a caveat. “Reasonable restrictions”, says the charter, may be imposed “on any act which may undermine the nationality, sovereignty, independence and indivisibility of Nepal, or federal units, or jeopardizes the harmonious relations subsisting among the people of various caste, ethnicity, religion, or communities.”The same Article provisions further restrictions on acts deemed to “incite racial discrimination, or untouchability, or disrespects labor, or any act of defamation, or contempt of court, or an incitement of offence, or is contrary to decent public behavior or morality”.
With so many conditions on free expression and dissent, can we say there is freedom of expression in Nepal?
Couldn’t the state for instance easily misuse the statute to suppress dissent and stifle free press? After all, this is a country that not long ago deported a foreign national for expressing views that were deemed against ‘national interest’. More recently, some allege that the all-powerful government of KP Sharma Oli is trying to impose severe restrictions on I/NGOs on the pretext of ‘systematizing’ them. Former prime minister and Nepali Congress President Sher Bahadur Deuba calls it ‘creeping authoritarianism’. Moreover, as has recently been the case in India, rumors continue to swirl in Nepal about new laws to ‘regulate’ online news.
In theory, yes. In practice, depends
“Principally, free speech should not be restricted under any condition,” says Bipin Adhikari, an expert on constitutional law. “But it is much easier to advocate for absolute freedom of speech in developed countries. Perhaps it is unrealistic to apply the same standards to developing countries where freedom of expression is but one of the many citizen rights that need state protection.”
In his view, our constitutional provisions are in keeping with the country’s needs and level of development. More importantly, says Adhikari, the culture of listening to each other and accepting diversity is growing in Nepal.
But writer CK Lal, a trenchant critic of the new constitution—and of what he labels the ‘Permanent Establishment of Nepal’ (PEON), comprised of the traditionally dominant Khas-Arya ethnic group—sees a troubling trend gaining ground. “Earlier, during the Panchayat rule, there used to be window dressing that purportedly depicted the state’s inclusionary character. But with ethno-nationalism enshrined as the central character of the new constitution, even the need for such window dressing has been dispensed with.”
Lal does not believe dissent is easily tolerated in Nepal because “a society built on a single religion is an inherently dogmatic society. And the more assertive the religion becomes, the more dogmatic the society gets.”
If that is the case, isn’t life difficult for dissidents like him?
“Yes, it is. You become an outcast just because you refuse to jump into the gravy train,” Lal replies.
What about the accusation that critics and dissenters like him are stuck in a narrow well and simply cannot see beyond it? And why do they always, as some put it, have to talk negative? “How do you differentiate between negative and positive views?” asks Yug Pathak, another harsh critic of the current ruling establishment comprised of the ‘old Hindu elite’. “In a free society, there has to be healthy debate on all important issues. Only robust debates produce creative sparks of knowledge.”
Pathak blames Nepal’s “flawed history” for what he sees as the prevalent intolerance. “Things started going awry when the Gorkhalis started their campaign of state expansion and internal colonization. They controlled the whole narrative. Only at the start of the 20th century did ideas from outside the country start trickling in.”
But even in the 20th century the public space was captured by the ruling elite, Pathak says, largely because they continued to control the means of production. “The kind of Hindu fundamentalism we see in India these days is absent in Nepal. But whenever someone says anything against the dominant narrative, that person is dismissed as a negative influence on the society.”
Siddharth Varadarajan, former editor of The Hindu and the founding editor of thewire.in, a vital online platform in India for anti-establishment and dissenting views, thinks that one should make a distinction between dissent and freedom of expression. “More than dissent, it’s freedom of expression that’s important,” he told APEX.
“The freedom to express oneself in ways that others may not agree with is essential to a democracy and to a free society. Journalists and writers must be free to write, publish and broadcast. Artists must be free to paint. Directors must have the freedom to make the movies they want. And dissidents must have the freedom to dissent.”
Varadarajan points out that while dissent is legal under the Indian constitution, “the individual’s freedom of expression is often under assault in India.”
Rubeena Mahato, an outspoken Nepali writer and newspaper columnist, also qualifies dissent. “A party intellectual who has benefitted from being close to power centres his entire life suddenly becomes a ‘dissenting voice’ simply because he opposes the new government. Hateful, racist and inflammatory speech is given space in the mainstream media in the name of representing ‘dissenting voices’.”
“But when it comes to real dissent, one that challenges established wisdom, one that is not just about being disruptive to the authority, but comes with a vision about the future, from a place of moral high ground and often at personal costs and sacrifice to those holding it, we are not so tolerant,” Mahato says.
Adhikari, the constitutional expert, cites the fact that even the remotest communities in the country are ruled by elected bodies these days, with growing representation of women and other traditionally marginalized groups, as an example of how the Nepali state has become more inclusive and tolerant. But Lal, the commentator, sees further entrenchment of the traditional Hindu ethnic hierarchy with the promulgation of the new constitution, which in his view stifles dissent.
What about Nepali women Adhikari alludes to? Are they free to speak their mind in ‘New Nepal’? Not so, argues Mahato.
“When a woman speaks, people still feel the need to ‘correct’ her. So engaging in equal terms in public forums or having a productive debate is close to impossible,” she says. “And if you are a woman with contrarian views, you are likely to be punished for your opinions even more.”
“No wonder so many women just choose to stay silent,” Mahato adds, “even on issues they feel strongly about.”
Such strong, and often polarizing, views suggest that dissent and free speech are still matters of intense debate in Nepal. We can only hope that as our democracy matures, so will our public debates.