[Ed Note : In a post that has previously been published here, Hardik Subedi of NALSAR University of Law offers a scathing critique of Nepal’s New Information Technology Bill. Do read to find out more!]
“They claim that they have brought in democracy overthrowing monarchy,
But today even they have turned as lamentable as the King.”
This is a roughly translated excerpt from the newly popular Nepali song- ‘Lutna Sake Lut’ by Pashupati Sharma which has garnered quite a controversy. The above quoted verses aptly represent the current political tendency; no wonder that the song has irritated the increasing ‘Big Brother’ attitude of the government.
When the monarchy was in place and Maoist insurgency was going on in Nepal, self-censorship was a commonplace; poignant conversations even inside closed doors tailed with the horror of being heard and being suspicioned as an insurgent or their aide. Having experienced the suffocation under a repressive monarchy, Nepalese fought for their freedom to create colossal changes in the nature of democracy and governance. But lawmakers are making laws that put the fundamental rights the people fought for in peril as if they have suffered historical amnesia. The provisions in the proposed Bill to regulate Information Technology are one of such direct onslaughts on the freedom of speech and expression, which is often regarded as the foundation stone of every democratic society. The Bill is replete with a strong stench of monarchical hangover that hints towards the tendency of the revolutionaries of yesterday turning into conservatives.
The restrictions on speech in the Bill are couched in as wide and vague terms as possible. To take a representative example, Section 94 mandates that no one should publish anything that ‘upsets, discourages, reprimands, and insults’ anyone. By using vague phraseology, the parliament has wielded unfettered discretion on prosecutorial authorities to initiate action against anyone who is critical of the government. This has sinister consequences to general populous and specifically to journalists who may be subjected to arbitrary arrests and harassment by the government. With the possibility of its horizontal enforcement, the state has unwarrantedly entered into the private interactions of the citizen. In addition to deserving moral resentment of the citizenry for such legislation suppresses dissent, the law also falls foul of test of legality under proviso 1 of Article 17 (2) of the Constitution. The parliament can formulate laws to reasonably restrict speech only within the categories provided under the said proviso. Certain content might cause annoyance or seem ‘upsetting, discouraging, reprimanding, and insulting’ to someone, but the standard demanded by the Constitution is that of an incitement of an offence, and merely advocacy of an idea falls short of such standard. Therefore, unsurprisingly, the aforementioned restrictions under Section 94 that this Bill seeks to impose are not within the purview of the categories stipulated under the Constitution and fails to pass the constitutional muster to ‘reasonably restrict’ the freedom of speech and expression.
It is well recognized that the restrictions on speech should be sufficiently precise and clear so that it provides guidance to the law-abiding citizen as to when his actions can be deemed illegal. Hence, open-ended and vague terms are treated as a vice in speech restricting legislations. Since the terms used in Section 94 are largely undefined, it goes without saying that the citizens would not be in a position to decide whether the expression is lawful. Due to the fear of prosecution, the citizens would hesitate even to express lawful speech and err in the side of caution resulting in self-censorship and gagging of crucial ideas coming into the public domain – a ‘chilling effect’. The Indian Supreme Court back in 2015 in the landmark judgment of Shreya Singhal v. Union of India struck down Section 66A of the Information Technology Act 2000 for being similarly vague and overbroad and causing the chilling effect. The principle of having a ‘narrowly tailored’ legislation has been endorsed multiple times by the International courts while interpreting Article 19 (3) of the ICCPR.
The provisions in the Bill seem to be a part of the concerted attempt of the current government to take up a parental (almost dictatorial) role to regulate the public discourse surrounding its activity, akin to ‘Thought Police’ as described in the dystopian novel ‘1984’ by George Orwell. In the pursuit of controlling public discourse, the draft seems to have been prepared in flagrant disregard of international practices. According to General Comment 34 adopted by the UNHRC on State parties’ obligations under Article 19 of the ICCPR, which Nepal ratified in 1991, ‘all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition’. Further, it goes on to say that the speech which can be construed as ‘insulting’ against a public figure cannot be imposed with sanctions. But since the Bill does not make any such exception, its application to suppress critical discussion around the work of person holding public office is a strong possibility.
The Bill draws even more suspicion of the ill-motive of the government when we peruse Section 92 and Section 94 (2). The sections empower the Information Technology department of the government to direct the intermediary for immediate removal of any material that is found objectionable. This is an insidious form of censorship that infringes the very core of democratic principles. Article 2 of the ‘Manila Principles on Intermediary Liability: Best Practices Guidelines for Limiting Intermediary Liability for Content to Promote Freedom of Expression and Innovation’ 2015 emphatically puts that the restriction of speech should not be done without an order by an impartial judicial authority. However, the government by upkeeping a strong possibility of censoring objectionable material would be a judge in its own case inevitably safeguarding its own interest at the cost of freedom of expression of the citizens. Conspicuously, Section 115 of the Bill envisages the formation of a special court to deal with its operation in a swift manner, but it does not grant the authority to provide the orders to restrict speech. The appointment of the loyalists of government in such adjudicative bodies is nevertheless not remote, it could have been a little more impartial than the decisions by the governmental authority, which more often than not would find itself in the situation of conflict of interest.
The tyrannical tone of the Bill hits acute levels when the restrictions on the Bill are appended with criminal sanctions under Section 96 which includes hefty fines running to lakhs and imprisonment up to fifteen years. The standard of proportionality needs to be adopted in the prosecution under a speech restricting legislation. Time and again, international courts including the UNHRC has criticized imprisonment and hefty fines as a disproportionate response to holding opinions. Further, there is general consensus among free speech scholars that criminal defamation laws go against democratic principles and are anachronistic.
As has been quoted several times in different international and domestic decisions of various courts, the essence of the freedom of speech and expression clause is to protect the speech that offends, shocks and disturbs; it is not merely applicable for speech that is pleasant and favorably received as inoffensive. It is true that the government has responsibility of curbing incitement and advocacy of national, religious, communal and racial hatred, but it should be mindful to not curb dissent, discourse and plurality. With the proposed law, the government of Nepal seems to have claimed its ‘copyright of thought control’–the hallmark of totalitarianism. This is how the democracy ends. Not with a bang, but with a whimper.