Fundamental rights are the backbone of a free society like ours because they offer citizens a range of freedoms and rights that help them lead meaningful, fulfilling lives. Every bona fide Nepali citizen is guaranteed all 31 of the fundamental rights enshrined in our Constitution, which is an outcome of the historic Constituent Assembly. However, in one of its recent judgments, the Supreme Court (SC) ruled that fundamental rights are not limitless or absolute to any individual, and there must be some reasonable curb on the exercise of such rights, particularly the freedoms of expression and thought speech. The top court's constitutional bench ruled that lawmakers may legitimately restrict free expression. In the recently published full text of its April 3, 2024, verdict, the SC constitutional bench responded to a petition in which the petitioner, lawyer Pratyushnath Parajuli, argued that the Electronic Transactions Act, which was intended to control online content in the nation, infringed upon the right to free speech and thought guaranteed by the Constitution.
The apex court, which is the ultimate arbiter of all laws in the country, dismissed the petition, finding no constitutional conflict as claimed by the petitioner. However, it upheld the Digital Transactions Law, stating that freedom of expression, a fundamental right protected by Article 17(2) of our Constitution, must not harm individuals, communities, national sovereignty, territorial integrity, or nationality. In case this happens, our government has the authority to impose restrictions. Such steps align with international human rights norms, including Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which acknowledge that free expression may be curtailed for legitimate reasons, such as stopping hate speech, maintaining public order, or protecting the rights of others. The court's decision also reflects the rulings in major democracies: free speech is protected by the First Amendment in the US, and the US Supreme Court has ruled in cases like Gitlow v. New York (1925) that speech that incites violence or jeopardizes national security may be curtailed or regulated. Similarly, the Indian Constitution allows reasonable restrictions on free expression to preserve public order. Speech that incites hatred or prejudice is also restricted in European countries.
Another key issue raised in the ruling was the challenge of balancing individual freedoms with social responsibilities. Free expression has the potential to spread anger and discord and provoke violence in a multicultural and multiethnic nation like Nepal. As a result, the law must ensure that expressions do not provoke animosity, religious disharmony, or discrimination based on identity, gender, caste, or religion. Meanwhile, the issue of prior censorship has also been addressed in the latest SC verdict. Article 19(1) of the Nepalese Constitution bars prior censorship on the publication of news, editorials, or other media material. Nonetheless, the court made it clear that responsibility must come after the publication of materials, implying that although people are free to voice their beliefs, they are also accountable for all their speech, statements, and write-ups. The debate over free speech is of greater importance in the digital era, where social media amplifies the impact of individual expressions. Through its latest full text of a major verdict, the top court, the main arm of our judiciary, has reinforced the idea that harmful speech in media or elsewhere must be restricted without undermining the essence of freedom of expression and has demonstrated that it remains vigilant in protecting society from individuals who desire to serve their interests by violating the essence of our constitutionally guaranteed rights.