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In today’s world, mobile phones have become more than just a means of talking to one another—they have become an inseparable part of our daily lives. According to the National Census Report of 2022, about 73.2 percent of Nepalis now own a mobile phone, while only 4.5 percent still use a landline. This shift tells an interesting story: nearly three out of every five people in the country have mobile access. It’s a remarkable step toward the vision of a Digital Nepal.

This widespread use of mobile phones has changed how people stay connected. Families, friends and communities can now share information and emotions instantly, bridging physical distances and strengthening social ties. Mobile phones have become tools of connection.

However, the same technology that keeps us connected also plays a key role in crime investigation. With mobile phones nearly in every hand, police and other law enforcement agencies have found new ways to track down suspects and gather evidence of crime.

The Call Detail Records (CDRs) provide a wealth of information—numbers dialed, call duration and timestamps—that help investigators to find the accused or the victim’s movement, communication patterns and even possible intentions. In many cases, these records become crucial in identifying the sequence of events, the intent, planning and execution of a crime/offense.

Constitutional scenario 

The Constitution of Nepal prohibits the enactment of any law or order that undermines fundamental freedoms and constitutional values. Article 19(3) stipulates that the means of communication cannot be obstructed except by law. Article 28 guarantees the right to privacy concerning one’s body, residence, property, documents and communications. The Individuals’ Right to Privacy Act, 2018, under Section 11 and 25, empowers investigating agencies to collect personal information during the investigation of an offense with authorization from a court or some other appropriate authority. This Act seeks to strengthen the right to privacy; however, its provisions clarify that privacy is not absolute and may be restricted during criminal investigations by the police. 

Article 20 further provides that no defendant shall be compelled to testify against themselves and that they have the right to be informed of the actions taken against them.

Criminal laws 

Though Nepal lacks an independent law specifically governing CDRs, multiple laws—including the Right to Privacy Act, 2075; Narcotic Drugs Act; Telecommunication Act, 2053; and the Electronic Transaction Act, 2063—have provided the legal basis for collecting individuals’ data during criminal investigations. 

The Nepal Telecommunications Authority (NTA) directs telecommunication service providers to archive call records for at least one year. The NTA also instructs service providers to furnish CDRs to investigating authorities upon a court order.

Section 10A of the Narcotic Drug (Control) Act, 2033 authorizes investigating agencies to collect phone records and other communication details of any person under investigation. A similar legal provision is found in Section 18 of the Organized Crime (Prevention) Act, 2070, which empowers investigators to obtain communication data for crime control purposes.

The Telecommunications Act, 2053, under Section 19, empowers the government to tap telephones or obtain call details of any individual when deemed necessary under the law.

Further, the Guidelines Relating to Access to Justice (Procedure), 2074, adopted by the Supreme Court of Nepal, entrusts district courts with the authority to regulate the procedure for obtaining call details. Section 4 of the guidelines requires the investigating officer to submit copies of the First Information Report (FIR) or Police Report, along with other relevant documents, when seeking court permission to access a person’s call details. Section 7 provides that the police or any other investigating authority may request the court for access to information such as location, SMS, CDRs, user details, SIM user and location, call-wise location, IP address and internet activity logs, among other details. Section 11 stipulates that the district judge’s decision in this regard shall be final.

In Advocate Baburam Aryal v Government of Nepal (NKP 2074, Part 59, Decision No. 9740), the Supreme Court held that obtaining call or SMS details without legal authorization is unlawful. The court emphasized that while criminal investigations may rely on CDRs, such actions must strictly adhere to the procedures prescribed by law and order.

Section 297 of the National Criminal Code, 2017 prohibits the interception or recording of another person’s telephone conversation without proper authorization or consent. Violation of this provision is punishable by up to two years’ imprisonment or a fine of up to NPR 20,000 or both. Section 299 prohibits deceitful telephone calls or transmitting messages. It provides that a person who commits such an offense shall be liable to a sentence of imprisonment for a term not exceeding two years or a fine not exceeding twenty thousand rupees or both. 

Global precedent 

In India, Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 [Indian Evidence Act, 2023] provides that magistrates have the authority to permit or deny the collection of CDR information.

In China, there is no requirement for a judicial order to obtain CDR information. The legal framework does not recognize the concept of a warrant, and security personnel have the authority to detain individuals or demand CDRs directly.

In Japan, CDRs are obtained by investigating agencies only upon the order of judicial officials, ensuring judicial oversight in the process.

Way forward 

The CDRs are a valuable tool for understanding networks, as they reveal who called whom, how frequently and for how long. They help uncover criminal networks and associates, playing a crucial role in tracking the whereabouts of suspects, defendants and their accomplices.

Despite their importance, an independent legislation dealing with CDRs is still due in Nepal. There is scope for amending the National Criminal Procedure Code to formally incorporate a mechanism for the lawful collection and use of CDRs in investigations.

The laws confined to paper hold little more than cosmetic value. However, when they are faithfully implemented in letter and spirit, they become the bedrock upon which democracy stands.

Enactment and enforcement are the two vital components of law. Enactment is the birth of law, the moment when it is conceived. It is the intention, the vision of order and justice. And enforcement is its living pulse. It follows enactment and translates the words into action. So, are we serious about the enforcement of laws?  

As we celebrate Human Rights Day, a day designated by the United Nations (UN) to draw the attention of international community towards the Universal Declaration of Human Rights (UDHR) which was adopted by the UN General Assembly on 10 Dec 1948 by a vote of 48 to nil with eight abstentions, it’s high time for us to reevaluate our efforts in effectuating those rights and obligations.  

The deliberation of UDHR is considered as one of the five core human rights treaties of the UN that functions to advance the fundamental freedoms and to protect the basic human rights for all individuals.  The declaration is neither addressed to nations nor to the member states but to every individual. This UN deliberation is in keeping with the words, “We the people of the United Nations” with which the preamble of the UN Charter begins.

In the words of Palmer and Perkins, the acclaimed commentators of Human Rights, ‘UDHR is a beacon of light for all mankind.’ There we can come across 30 fundamental rights, including that of right to life and liberty, and freedom of speech, guaranteed to every human being by virtue of being human.

Observe the laws 

Ever since its inception, UDHR has acted as a morally binding guideline to protect humanity and uphold human dignity. Still, this occasion of Human Rights Day always affords a mixed reaction. Yet, its gross and systematic violation continues in our part of the world. To tell you a fact, our rights are merely limited on papers.   

A day does not pass without news stories of severe human rights violations in countries across all regions of the globe.  Are our children being treated humanely? Are our labor rights protected humanely enough? Are our women safe on the streets? Are our women, children, differently-abled persons or senior citizens living a dignified life? Are we getting a breath of fresh air?

The rights incorporated under the UDHR are also embodied under the Constitution of Nepal. Take an example of Article 16, which envisages that every person shall have the right to live with dignity. 

So, what does dignity mean? Is it an integral part of human rights? Dignity means a state or quality of being worthy of honor and respect. A dignified life has a freedom to exercise his rights and even fight for it. It symbolizes equality as an intrinsic right and confirms that every human is equal in this world and that everyone has equal rights and duties.

Enhance economy 

The concept of equality is also one of the notions of UDHR as well as ours’ Constitution. The digital divide, stereotype and division of society in line with economical and political status demonstrate a vivid reality that things are not equal in our country and equality remains a legal matter limited to black letters of law.  The same is the case with the right to the environment. Our cities are so polluted that the constitutional guarantee of the right to live in a pollution-free environment gets violated in broad daylight.

The right to employment also seems to be limited on paper as our majority of youths are toiling in gulf and developed countries for a better future.

The continuous violation of our rights or state’s incompetence in enforcing those rights gives a message that we cannot upkeep the constitutional guarantees unless we are economically sound. Dr BR Ambedkar, the chief architect of Indian constitution, was of the view that civil and political democracy cannot be implemented in true sense unless we have a robust economic democracy. Simply put, our rights cannot be implemented in letter and spirit, unless the state is economically sound enough for that.  

It’s high time to declare a universal declaration for maintaining the economy of the states so as to make the states qualified to implement those laws and obligations.

So, will it be just to conclude that the only thing universal about human rights is its universal violation?

Way out

Our education system should encompass values such as peace, non-discrimination, equality, pollution-free environment, fair and impartial justice, dignity, tolerance, and respect for human dignity. Our legal education system is good at imparting knowledge about human rights but bad at educating students about equity, violence redressal and preventive mechanisms.  

The concerns of human rights can no longer remain an affair of a particular state in the present world. The only thing universal about universal human rights ought to be its universal acceptance. 

Ironically, the mandates of UDHR don’t seem to have the muscle of measures, such as allocation of grants to the states with limited economies to enforce the rights in actual sense. It’s seen that the developing countries, like Nepal, are in a sorry state to enforce fundamental rights just because of poor economic conditions. The observance of UDHR is not a charity but a duty.  It’s high time to stand together against all forms of bigotries and human rights’ violation. Over and above all this, it’s high time for the UN member states to resort precisely towards actual enforcement than the mere enactment of the laws.