KATHMANDU, Feb 23: The Supreme Court has ruled that fundamental rights, though guaranteed by the Constitution, are not unlimited.
A constitutional bench, headed by former Chief Justice Bishwombar Prasad Shrestha and comprising Justices Anand Mohan Bhattarai, Prakashman Singh Raut, Sapana Pradhan Malla, and Prakash Kumar Dhungana, ruled that lawmakers may reasonably limit free speech. The judiciary has recently released the full text of their April 3, 2024, verdict.
Lawyer Pratyushnath Upreti sued the government, claiming a law on electronic transactions violated the constitution’s free speech protections. The Supreme Court, however, dismissed the petition, finding no constitutional conflict as alleged. Even though the case was dismissed, the court’s interpretation relied on relevant legal precedents on free speech and international law.
In this writ petition, the Supreme Court focused on two key issues. First, it determined whether the fundamental right to freedom of thought and expression is absolute. Second, it assessed whether the provision in the Electronic Transactions Act violated the constitution, as the petitioner alleged.
The Supreme Court previously ruled that the constitutionally guaranteed freedom of expression is not absolute and stressed that it carries responsibilities.
"The exercise of this right must not harm individuals or communities or violate others' dignity. In a diverse society like ours, which is multi-ethnic, multilingual, and multi-religious, individuals must exercise special caution when using their freedom of expression," the court stated.
In a writ petition that the Government of Nepal filed against Advocate Kalpit Parajuli, the Supreme Court ruled that the law must restrict expressions that incite hatred or hostility based on caste, religion, language, gender, identity, or region.
The verdict stated that the law may restrict the fundamental right to freedom of speech and expression, but only if necessary for a legitimate purpose. It emphasized that such restrictions must be clear, understandable, reasonable, and aligned with human rights laws. The verdict further clarified that any limitations should not weaken the essence or spirit of freedom of expression but must be rational and justifiable.
Section 17 (2) of the Constitution includes a provision that restricts any actions that undermine Nepal's sovereignty, territorial integrity, nationality, and independence.
The provision states that “nothing shall prohibit the creation of laws to regulate radio, television, online or any other type of digital or electronic devices, printing presses, or other forms of media.” Based on this, the Supreme Court interpreted that fundamental rights are not entirely absolute.
In its decision, the Supreme Court cited the 1925 US Supreme Court ruling in the Gitlow v. New York case. The court referenced the U.S. interpretation, which holds that constitutionally guaranteed freedom of expression and press freedom are not unrestricted rights and have limitations. A similar precedent from the European Court was also noted in the judgment. The court upheld that restrictions on free speech are permissible if they serve legitimate aims and are reasonably implemented. Additionally, the ruling found the Section 47(1) limitation within the Electronic Transactions Act constitutional.
Freedom of expression grants the ability to express one’s thoughts and feelings. It allows for the free expression of thoughts, feelings, and beliefs. This includes freedom of speech, writing, art, and other forms of expression.
Article 19 of the Universal Declaration of Human Rights (1948) states, “Everyone has the right to freedom of opinion and expression. This right includes the freedom to hold opinions without interference, and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” Similarly, Section 19(1) of the International Covenant on Civil and Political Rights (1966) asserts, “Everyone shall have the right to hold opinions without interference.”
Nepal’s Constitution, Section 17 (2), ensures all citizens have freedom of thought and expression. However, the petitioner argued that Section 47 (1) and (2) of the Electronic Transactions Act of 2006 unjustifiably limit freedom of thought and expression, infringing on fundamental rights. The use of hateful terms and similar expressions in speech, writing, or gestures has faced opposition.
Restrictions on free expression and thought have led to citizens being criminally prosecuted. Section 19 of the Constitution ensures the right to communicate. Section 19 (1) states, “No prior restriction shall be imposed on the publication or dissemination of any news, editorial, article, composition, or any other written, audio, or audiovisual material through any medium, including electronic publication, broadcasting, and printing.”
The court stated, “The provisions do not allow prior restrictions on the publication or dissemination of news, editorials, articles, compositions, or any other written, audio, or audiovisual material through any medium, including electronic broadcasting, printing, and others. The court has banned prior censorship in media and publications. The ruling also stated that pre-publication restrictions or prior censorship of information are prohibited.
Constitutional and legal frameworks define rights, duties, and limitations on their exercise. Sections 17(2) and 19(1) of the Constitution protect freedom of thought, expression, communication, and access to, use of, and dissemination of public information. The constitution restricts individual rights to avoid harming public decency, morality, social order, sovereignty, territorial integrity, nationality, or inter-federal harmony. The Electronic Transactions Act is in line with these constitutional boundaries.
The verdict states, "The law prohibits content that spreads hate or hostility, violates public morality or decency, disrupts harmonious relations between castes and communities, or harasses, disturbs, or humiliates women in electronic form." It further states, "Since judicial decisions have enacted and implemented the provisions of Section 47(1) and (2) of the Electronic Transactions Act, 2006, these provisions align with Section 17 and Section 19 of the Constitution of Nepal."