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Every right comes with a reasonable restriction. If right goes without restriction, there would be chaos in society. In this context, the right to free speech is considered the mother of all freedoms since it has a special and crucial place in the hierarchy of freedoms. The right to think and speak freely, as well as to receive information and to participate in open discussions without fear of government restriction, could be considered the core of free speech. The freedom to converse on an issue is the opportunity to speak freely.

However, the right to speech does not give license to defame or harm others. Recently, a media outlet got a directive from the Press Council Nepal to remove a piece of fake news claiming the involvement of Justice Anand Mohan Bhattarai, lawyers and media entrepreneurs to dismiss more than 400 corruption cases. Issuing a press statement on April 28, Judges’ Society Nepal demanded stern action against Sidhakura, the show in question, for broadcasting the ‘news’ without checking the facts, thereby attacking not just a judge but the judicial system as a whole. Relevant agencies of the state have initiated legal proceedings against the media.

Against this background, let’s delve into freedom of speech. 

Constitutional scenario

The Constitution of Nepal 2015 prohibits the enactment of any law and order at the cost of fundamental freedoms and constitutional values. Article 1 declares any law, which is inconsistent with the constitution, ‘void’, meaning that the fundamental freedoms, which include freedom of speech and expression, cannot be curtailed in the name of any law.

Article 16 states that every person will have the right to life with dignity. Article 17(1) guarantees the right to freedom, including personal liberty. Article 17(2) guarantees fundamental freedoms, like freedom of opinion and expression; freedom to assemble peacefully; freedom to form political parties; freedom to form unions and associations; freedom to move and reside in any part of the country; and freedom to engage in any occupation.However, these freedoms are not unrestrained. As with every right, the right to speech and expression also come with reasonable restrictions. A citizen cannot exercise his freedom of speech in a way that undermines the nationality and sovereignty or jeopardizes the harmonious relations among the people, incites hatred, defamation, offense or is contrary to decency or morality or public order.

This way, a person can voice his concerns in every way, and the way he wishes to but cannot defame or challenge other’s dignity or the law of the land. Simply put, you can enjoy your rights without violating others’ rights. Article 19 deals with the right to communication. This clause prohibits pre-censorships of publication and broadcast of content or information through any medium. This means broadcasting or press materials cannot be seized at the sweet will of the government.

The constitution disallows untouchability and discrimination and prohibits them under Article 24. This means one is not competent to shape his views discriminating against his fellow citizens or members of the family. Article 27 envisages that every citizen will have the right to information. Right to speak or right to know is considered part and parcel of speech and expression and the same is the case with right to privacy (Article 28), which guarantees a person’s right over personal facts, leaving it up to the individual to decide when and under what circumstances to make them public. 

Remedy

The constitution provides remedy clauses that confer a citizen the right to move the Supreme Court (under Article 133) and High Court (under Article 144) at the instance of violation of his/her fundamental rights.

Judicial interpretation 

The Supreme Court in the case of Advocate Ratna Kumari Shrestha v Sudhir Sharma, editor-in-chief of Kantipur daily and others (2073 BS NKP, Decision Number 10370) held, in the name of the exercise of press freedom, it would not be justified to allow one to affect the dignity, independence and functioning of the courts. Nor, would it be in the interest of a democratic system to regulate press freedom at the cost of contempt of court. Both of these institutions—press and judiciary—should have to stand within their limits. If there is dissemination of information in such a way that it would tend to diminish the authority of the court, judges or cause contempt of court, then it would not be considered an exercise of the freedom of the press, rather it would form a basis for punishing an outlier on the charge of contempt of court. In the name of freedom of speech and expression, a media has no right to arbitrarily criticize the court’s decisions and thereby adversely affect the dignity of the court which would have an impact on the people’s faith in the judiciary. A media will be liable for contempt of court if it disseminates information to downgrade the authority and sanctity of the court and judgeship, the apex court held further.

In Thir Prasad Pokharel v Harihar Birahi, editor of Bimarsha Prakashan Pvt Ltd (2049 BS NKP, Decision Number 4604), the apex court held that Nepal’s constitutional norm and values are clear on a point that there shall be no pre-censorship, neither cancellation of registration of the newspaper, nor shall there be any shutdown or confiscation of printing press.

Global precedents

In India, the preamble of the Indian Constitution at the very outset clarifies that the democratic credentials, like liberty of thought, expression and belief; justice along the social, economic and political; or equality and fraternity, would be secured and promoted by the governments. Article 19(1)(a) guarantees freedom of speech and expression.

The laws in the USA not only recognize the right to fly the national flag but it has gone to the extent of holding flag burning as an expression of free speech and expression of its citizen against the establishment but Indian constitution does not approve the latter part of the right, India’s apex Court ruled in the case of Union of India v Naveen Jindal (2004). 

The First Amendment to the Constitution of the United States provides that the Congress shall create no law abridging the liberty of words or of the press.  In the 19th century, Germany guaranteed freedom of opinion in its Constitution with an express prohibition of press censors.

Interestingly, Sweden became the first country in the world to adopt a provision for the availability of official information for the citizens on their demand. The right to freedom of speech is recognized as a human right under article 19 of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR).

The way forward

The right to freedom of speech and expression is a fundamental right enshrined in the Constitution.  It expressly guarantees the right to voice our concerns through speech, expression or vote. Yet, it does not confer a license to defame others or violate the laws of the land. So, the freedom of speech is neither unrestrained, nor does it allow us to question the sanctity and integrity of others.

Publishing a fake news content to defame persons of high moral character or to post comments on social media to defame others or to speak in a way that tends to undermine the authority and sanctity of judicial institutions cannot be considered part and parcel of freedom of speech. It's high time to protect and promote the constitutional ethos, for Nepal deserves to uphold the press freedom by every possible means and in every given way.

We often think of climate change in terms of floodings, landslides, erratic rain patterns and their immediate after-effects, the devastations that these phenomena are causing among local populations.

Less attention is given on longer term consequences of climate warming. A recent report, a joint initiative of UNESCAP, UNDP and ADB, is offering a very sober reminder of the impacts of changed climate patterns in the agricultural sector, showing how hard local communities in the Asia-Pacific are hit.

The 2024 ESCAP-ADB-UNDP SDG Partnership Report, titled “People and Planet: Addressing the Interlinked Challenges of Climate Change, Poverty”, is a detailed analysis on the causes and effects of climate change in the livelihoods of millions of people living in rural areas.

Linking climate with strengthened agriculture and sustainable food production and doing a much better job at the “integration of food systems and food security into disaster risk reduction”, are keys not only to enhance people’s adaptability to the changes forced on them by a warmer, more polluted planet.

It is also instrumental to overcome poverty and zero hunger, two foundational aspects of the Agenda 2030. As the name of the report suggests, the changes needed all come down to having partnerships and collaborations but it also about institutional collaborations and stronger forms of governance.

Recently, news circulated that an expert dialogue on “Mountain, People and Climate” will be held in Kathmandu from May 22 to 23.

Per the report, the initiative will be led by the Ministry of Forest and Environment with the focus on promoting new partnerships and collaborations.

It is also aimed, according to Maheshwor Dhakal, joint secretary at MoFE, at “allowing the governments, stakeholders in mountain countries, to better understand mountain climate concerns and solutions, share expertise and experiences, and enable synergies”.

This is what we need. The challenges are so huge and solutions are available but complex and require novel thinking. In short, a new approach is needed. The partnership report identifies areas of action like sustainable agricultural practices, grassroots entrepreneurship and nature-based solutions in creating jobs at local level.

In practice, it highlights how “critical (it) is to ensure that new employment generated from transitioning to a economy is green and decent, supporting a just transition and contributing to poverty and hunger alleviation”. Together with social protection schemes, effective as cushions but extremely expensive and difficult to design, the entire Asia-Pacific region has the expertise and capacities.

There are also plenty of best practices on how local villages proactively engage in climate adaptive solutions because, essentially, locals often hold the key to effective actions.

They might not be clamorous but they can make the difference as when farmers adopt more and better organic practices or when they embrace the opportunities of renewable sources of power. But each of these solutions face complex dynamics in their implementation.

On the one hand, it is also about financial resources and expertise and guidance. On the other, it is really about innovating in the way decisions are made. That’s why the expert dialogue next month is going to be paramount but, at the same time, it’s also important to set some expectations. 

First and foremost, it should not be just a “one-off” initiative.

The event instead should lead to a roadmap of more consultations and not only among experts. While it remains crucial to have dialogues among experts and on this aspect, such platforms should be linked with existing (at least on the paper) consultative mechanisms that the Federal Government has already established even if rarely activated in a substantial way.

For example, bodies like the Climate Change Council and Climate Change Coordination Committee must be not only re-activated but re-booted and re-designed as truly consultative bodies, institutions that take engaging and involving non state actors seriously. But even a much stronger coordination among civil servants and experts from the civil society and private sector won’t suffice. What is required is a level of discussions that not only trickle down to the grassroots.

Certainly, it would help to extend conversation on climate mitigation and adaptations to the local levels, extending the scope of debate. A brilliant research paper by Prakriti Resource Center, published in 2019, offers a four-pillar framework to localize climate action in Nepal.

Within this approach, the research identifies policy level coordination and coherence are paramount and underlines how traditional top-down measures are bottlenecks to localize climate mitigation and adaptation. The challenges are so daunting in Nepal and elsewhere in the region.

In the specific case of Nepal, local governments are neither consulted nor involved enough and this is a finding corroborated also by the work done by the researchers at the above-mentioned center. We really need a fresh re-start and seriously, think what and how localizing climate action can work and be effective.

Going beyond the jargon, moreover, when we talk about coordination, how should it unfold? How can we ensure that coordination does not only entail policy and legislation centered-discussions but rather coordination that, to start with, should involve and engage local people.

Not many fully understand that the Agenda 2030 and its SDGs offer a great opportunity at empowering citizens by enabling them to be part of the decision-making. Ensuring wide, open and transparent consultation across all the levels of the multi-governance system that Nepal is creating would be, in a sense, a first milestone toward real participation that is based on people being able to deliberate.

Deploying more sustainable agriculture practices, creating conditions for establishing resilient job markets in rural areas especially by having more women in economically productive roles and having better education and skills development systems, is not just a matter of expertise, policy and money.

It is also a matter of allowing people to be part of the conversation and possibly have a real, meaningful agency, a voice to decide. In a recent event organized by the Institute for Strategic and Socio-Economic Research on April 16, Prime Minister Pushpa Kamal Dahal spoke of the centrality of good governance.

“Engaging citizens in decision making fosters transparency and accountability, which are essential pillars of good governance” he said. “It is crucial to adapt governance mechanisms to mitigate environmental risks” the PM added. He talked about government’s efforts to include and involve people.

According to the Partnership 2024 Report, one of the key enablers for successfully winning the challenges of climate warming in the rural areas of the whole Asia-Pacific, harnessing the power of local agricultural practices and ensuring food security across the board is “institutional capacity building”.

It is explained as “developing the capacity of institutions for climate-risk assessment and governance is vital for effective public decision-making at all levels”. “Effective policymaking requires coordination across different levels of government and must include all relevant stakeholders, including the private sector, civil society organizations, financial institutions and international organizations”, the report elaborates.

The publication also emphasizes how an ADB project, the Community Resilience Partnership Program (CRPP), is trying to “increase the participation of women in decision-making processes which in turn leads to more effective and inclusive resilience strategies”. But how viable on the long term such kind of financial support is going to be? What about local ownership? A proposal: Can we, finally, let the people decide what all these jargons mean in practice in the fight against climate warming?

Can Nepal truly empower its citizens in a bottom-up form of federalism that is truly inclusive and transformative? Moreover, it is really high time that PM Dahal started backing up his visionary rhetoric with real ground-breaking governance actions. Perhaps a policy and experts dialogue to be held next month in Kathmandu could start paving the way for these answers to be addressed by those who should really be in charge, the citizens.

India, the world's largest democracy, is busy holding the 18th Lok Sabha elections which will conclude on June 1. The global community is closely watching the outcomes of these elections. With its burgeoning population having surpassed China's, India is on track to claim the mantle of the world's third-largest economy by 2030. As a key player in the Indo-Pacific region and a torchbearer for the Global South, India's policies, both domestic and foreign, resonate far beyond its borders.

The significance of India's elections reverberates throughout the region. While there are widespread projections that the ruling Bharatiya Janata Party (BJP) will win a third consecutive term, with Prime Minister Narendra Modi continuing in office, opposition parties are expected to strengthen their position compared to the 2019 elections.

The election outcomes in India are of particular significance for South Asian nations including Nepal, where India wields deep political, economic and military influence. In 2014, upon assuming power with a resounding victory, Prime Minister Narendra Modi reinvigorated the 'Neighborhood First' policy, although he failed to achieve the expected outcomes. 

To demonstrate the BJP government's priority for neighbors, he invited the heads of state and government from South Asian countries to attend his swearing-in ceremony. When re-elected in 2019, Modi continued the 'Neighborhood First' policy by inviting BIMSTEC (Bay of Bengal Initiative for Multi-Pectoral Technical and Economic Cooperation) member countries to his swearing-in ceremony. If re-elected for a third term, the BJP government is likely to maintain the 'Neighborhood First' policy, although India has been focusing more on regions beyond South Asia in recent years. 

Despite occasional highs and lows, the trajectory of Nepal-India relations points toward a positive outlook, poised to weather the complexities of shared history and future aspirations.

Over the past decade, under Modi's leadership, Nepal-India relations have witnessed many highs and lows. However, the relationship is moving in a positive direction, which should continue even after the elections.

Crucial issues such as the 1950 Peace and Friendship Treaty and boundary disputes remain on the diplomatic agenda, albeit the two countries approach them with varying degrees of emphasis. Nevertheless, the two neighbors recognize the imperative of fostering trust and stability to navigate these challenges successfully. A notable shift in India's approach to the internal affairs of its neighbors signals a promising era of cooperation built on mutual respect and understanding.

The BJP government has changed its approach on how to view the internal political affairs of South Asian countries which has helped to build an environment trust.

One encouraging signal is that economic collaboration has emerged as a cornerstone of bilateral relations, with a growing focus on development partnerships and infrastructure projects. Despite changes in political leadership, the momentum in bilateral engagements remains steady, underpinning a commitment to sustained progress and prosperity.

Over the past three decades, India has faced charges of not completing development projects for extended periods. However, several bilateral projects are now making progress, ultimately helping to build an environment of trust. Recent visits by Nepali leaders to New Delhi and Indian leaders to Kathmandu have focused on enhancing economic and development partnerships. The energy cooperation agreement between Nepal and India has paved the way for regional energy cooperation, with Nepal positioned as a clean energy provider to the region. 

As India's economy continues to rise and rise, and major multinational companies shift their industries to India, Nepal, which shares an open border, should get the opportunities. India could become a destination not only for unskilled Nepali workforce but also for highly skilled professionals in sectors such as education, health, IT, banking, and others, which have not received much discussion. Both Nepal and India should seriously consider these issues and clearly outline their plans to derive economic benefits from India's rising economy. These matters should be taken seriously regardless of which party comes to power.

Amid robust economic collaboration between two countries, over the past few years, Nepal is witnessing a debate about the growing ideological influence of BJP in Nepal. In recent years, there has been a perception among Nepali leaders and the public that the BJP and its affiliates are pushing for a Hindu agenda in Nepal. It is often said that they are suggesting (sometimes pressuring) Nepali leaders to scrap secularism and go for the Hindu state. There are also reports that various organizations linked with the BJP are active in Nepal with their Hindu agenda. 

While Nepal's top leaders are aware of those issues, they have not spoken publicly. However, they want to discuss those issues with Indian leaders. BJP leaders should be mindful that such efforts could again strain the bilateral relationship, which has reached a new level after sustained efforts from both sides. It would be worthwhile to recall India's approach to the demands of Madhes-based parties, mainly after 2017, which helped enhance the bilateral relations.

Many Nepali politicians and analysts view the growing activities of Hindu organizations as an attempt to overturn the 2015 constitution. This suspicion among Nepali politicians obviously does not help enhance the bilateral relationship. There should be frank and open discussions between the two sides, not only on these issues but also on other issues of mutual concern. 

India's relationship with global powers also affects its South Asia policy. The India-US strategic partnership is likely to be enhanced, but there are divergent views on several bilateral and global issues, including the Russia-Ukraine war. The India-China relationship is unlikely to improve for at least the next few years. As I have highlighted in my previous columns, Nepal's approach should be not to engage in the big-power rivalry but to focus on economic development.

The future of Nepal-India relations hinges not on fleeting political interests but on a shared commitment to long-term prosperity and mutual respect. By prioritizing economic and developmental collaboration, both nations can chart a course toward a brighter, more interconnected future.

People create laws and constitutions for themselves, then execute, implement and follow these laws as part of their civic duty. This process is common across the globe. The only times when individuals are exempt from following the law are at birth and at death. Otherwise, throughout their lives, people must abide by the law to maintain order and be seen as living a disciplined life.

As social creatures, humans naturally form communities and live among others. This need for social connection underscores the importance of fostering brotherhood and maintaining cordial relationships with one another. It’s through these positive interactions that harmony is created and sustained in society.

In today’s society, however, it’s apparent that many people, politicians and political parties often do not follow the rules and laws they are supposed to uphold. This lack of adherence to the rule of law has led to a breakdown in social harmony and an environment where breaches of legal and ethical standards are common. The authorities frequently enjoy absolute impunity for violating both political and economic rights, undermining the principle of justice that should be central to governance.

This disregard for the rule of law has contributed to growing social and religious conflicts. When those in power are not held accountable, it creates an atmosphere of mistrust and division among the people. Without a consistent enforcement of the law, the development and stability of society and the country are at risk. To move forward, it’s crucial that laws are respected and applied evenly, without favoritism or corruption, ensuring that everyone is subject to the same legal standards. This is the only way to rebuild trust, promote social harmony and foster sustainable development.

To address these issues, laws are needed to combat false accusations, rumors and hate speech. While Nepal has laws and regulations in place for these matters, they are not sufficiently strict, allowing people and political leaders to engage in character assassination with impunity.

Lawmakers in parliament must set an example through their conduct and language, presenting their opinions with discipline and respect. Since they represent the people of an entire nation, they should model behavior that is appropriate and considerate. It’s crucial to define the acceptable boundaries and types of language used when criticizing others. Even when someone is guilty of wrongdoing, there are other ways to hold them accountable without resorting to hate speech or personal attacks. The same applies for the bureaucrats.

Stronger enforcement of existing laws and the establishment of clear guidelines on acceptable discourse in public forums can help prevent the spread of harmful rhetoric and promote a more respectful and constructive political environment. Hate speech should never be tolerated, and strict measures must be taken to discourage and penalize those who engage in it.

The behavior and speech patterns of a country’s people reflect the nation’s culture and level of civilization. If we neglect to address these aspects, how can we cultivate a healthy culture and civilization? This disregard for cultural development will prevent the country from progressing in a positive direction.

Currently, the nation is engulfed in confusion because we struggle to discern who is telling the truth and who isn’t. Even those we consider our protectors and leaders often fail to be truthful, creating further uncertainty.

To address this issue, we need laws that promote honesty and respect for others. Anyone who spreads falsehoods or incites hate should face consequences, regardless of their position. This should apply universally, whether the individual is an ordinary citizen, a politician, a bureaucrat, or even a judge. If someone engages in spreading misinformation or hatred, they must be held accountable and face appropriate punishment.

In addition, it’s crucial to scrutinize the integrity of lawyers as they present their cases in court. Legal professionals should be held accountable for the accuracy of the facts they submit during trials. This ensures that justice is based on truth and prevents manipulation or distortion of evidence.

Furthermore, court verdicts should also undergo rigorous examination to ensure that decisions are fair, unbiased and founded on accurate information. Every part of the judicial process must be rooted in honesty to maintain public trust in the legal system.

Ultimately, the commitment to truth should extend across all areas of society. No matter who you are or what role you play, practicing honesty and promoting integrity are essential for building a just and ethical community.

The media plays a pivotal role in disseminating information, which means it must be held to high standards of accuracy and responsibility. Given that misinformation and disinformation are significant threats on a global scale, media organizations must be checked to ensure they are not contributing to these problems.

Nepal should strive to become a land where truth is valued and upheld in all aspects of society.

The author is a member of the Supreme Court Bar and has been practicing corporate law for around three decades