By Harsha Man Maharjan
The
debate regarding singer Durgesh Thapa’s new song, “Bicha Bichama -4 (Khyassa
Putali)”, released on Youtube on 23 July
2021 on the occasion of Teej show that a group of people are not happy with the
use of the words, “Khyassa Putali”. Just a day earlier, the National Folk and Duet Song
Academy Nepal had requested the singer to change these two
“objectionable” words and after the singer did not follow their request, it has
been reported that this organization is planning to boycott the singer and the
song. This situation has created the debate regarding the shrinking of digital
spaces in Nepal. Let us see the other two cases in brief.
Shrinking Digital Spaces
This
first case is related to “national security”. A video was made public on the
Youtube channel with the title “Deshdrohi” on August 18,
2020. The lyrics of the video
criticizes Brahmins and Chhetris and it contains visuals of burning the
national flag .On social media, many audiences called the video
“racist” and “antinationalist” and demanded that the video and its team be
booked according to the law. By August 18, 2020 its camera person was arrested
and the police started to look for other members including the singer, Gyalzen
Dorje Tamang, who surrendered before the police on 19 August, 2020. The singer
remained in the jail for six months under the charges of offence against the
state according to the article 49 of the National Penal (Code) Act, 2017 and
was released on bail after paying NRs. 1,00,000 on February 15, 2021. In an interview he mentioned
that the national flag was adapted from India and the flag did not reflect the
ethos of secularism.
This
second case is about “obscenity”. In March 2019, the police arrested the owner
of Youtube channel, Masti Talk Time,
its host, and a model on the charge of cybercrime under Electronic Transaction
Act, 2008. According to a report, the owner conducted interviews with singers
and models asking them personal questions, and some videos were deleted after
people complained about the content on the channel. Interviews with the model
related to her sexual experiences were very popular on the channel. These three
people were arrested after receiving complaints from general people.
No
doubt, these two cases do not allow us to generalize the situation of rights in
the digital space. There are other important cases related to free speech such
as Pranesh Guatam on film
review, Bhim
Upadhyaya on criticism of then PM K.P. Oli, Dipak
Pathak on the criticism of leader Pushpa Kamal Dahal, and Mohammad
Abdul Rahman on writing comments on security. Yet two cases discussed
above show that the digital spaces are shrinking in Nepal using vague ideas
like “national security” and “obscenity”.
Possibility of expanding
The
one way to expand the digital space in Nepal is to have laws that encourage
more debate and discussion. For this, the draconian laws can be amended.
Journalists and activists have criticized the vague provisions of the Electronic Transaction Act, 2008 and
the National
Penal (Code) Act, 2017 and requested the government to amend these laws.
The government too has already aimed to scrap the Electronic Transaction
Act(ETA) by introducing the Information Technology Bill. However this bill also
contains more draconian provisions than what ETA has. Many activists and
scholars have already requested the government to amend both laws.
Another
way is to interpret the restrictions broadly by courts. These restrictions seem
to emanate from the
Constitution of Nepal, 2015. Though the existing constitution guarantees
freedom of expression in article 17 (2) a, there are few important “reasonable
restrictions”. The reasonable restrictions can be divided into eight broader
categories: national integrity, harmonious relationship among people (religious
groups, castes), caste-based discrimination, disrespect of labor, defamation,
contempt of court, incitement to an offence, and acts against public decency
and morality. These limitations set the boundaries of the freedom of
information of citizens as often the laws that made provisions for rights and
responsibilities in contrary to the constitution can be challenged in courts.
Activists
and scholars have argued that these terms are vague. In a
review of the provisions of the constitution, researchers have raised
that these restrictions don’t follow the principles of international human
rights, especially those discussed in the
International Covenant on Civil and Political Rights (ICCPR), of which
Nepal is a signatory. Article 19 of this covenant allows the violation of
freedom of expression in some cases such as the rights or reputations of
others; and the protection of national security or public order. However, the
covenant clearly mentions that these rights can be violated only according to
law and only when it is absolutely necessary. Yet it is difficult to maintain a
balance between rights and restrictions. As argued by the constitutional law
expert Bipin Adhikari, reasonable restrictions mentioned in the constitution do
not guide the state in its interpretations as even courts can have multiple
interpretations. One way is to follow the principle of proportionality when the
courts interpret these reasonable restrictions. The principle of proportionality will
obligate a public authority to show that the restriction is strictly necessary.
These
should be more public deliberations on the fundamental rights guaranteed by the
constitution, reasonable restrictions mentioned in the constitution and other
provisions of national policy documents. Such deliberation could help expand
the digital space in Nepal.
Originally published at https://harsha-maharjan.medium.com/expanding-digital-spaces-for-deliberations-79e57df62e70
