II. Legal framework
Constitutional Provisions for Privacy
The Government of Nepal Act 1948 was the first written constitution of Nepal. It included freedom of expression and freedom of the press as fundamental rights, but did not include a right to privacy. The subsequent Interim Government of Nepal Act 1951, the second written constitution of Nepal, promulgated after Nepal was liberated from the autocratic Rana Regime on 18th February 1950, also did not include a right to privacy.
Nepal's third written constitution, the Constitution of the Kingdom Nepal 1959, modeled as a parliamentary democracy, included some fundamental rights, such as freedom of expression, freedom of the press, and freedom of speech. However, the right to privacy was not among them.
The Constitution of the Kingdom of Nepal 1962 was the most illiberal constitution in the history of Nepal. The sovereignty of the country was vested in the King, as were legislative, executive, and judicial powers. Even the fundamental rights that had been included in previous constitutions were not incorporated into this constitution.
In Article 22 of the Constitution of the Kingdom of Nepal 1990, the right to privacy was addressed as a fundamental right for the first time in the constitutional history of Nepal. The right to information was also included in this Constitution. The right to privacy was retained in the 2007 Interim Constitution, which remains in force today. Article 28 provides:
Except in circumstances as provided by law, the privacy of the person, residence, property, document, statistics, correspondence, and character of anyone is inviolable."
The Committee on Fundamental Rights and Directive Principles of the Constituent Assembly for the new constitution is currently progressing, and the draft Constitution proposes to keep the same language as the interim proposal. However, after a meeting with the Constituent Assembly members, Constituent Assembly Chair the Hon. Subash Chandra Nembang, and the Chair of the Committee on Fundamental Rights and Directive Principles of the Constituent Assembly, Privacy International and Privacy Nepal has suggested the following language replace that of the Interim Constitution:
- Everyone has the right to the protection of the law against arbitrary or unlawful interference with his privacy, home, property, communications, or information;
- Any limitation to the exercise of this right must be provided for by law and respect the essence of this right.
Statutory Protections for Privacy
Although there is constitutional protection for the right to privacy, no law or acts have been made to protect this fragile right. However, the right to privacy is addressed by some laws, such as the following:
- Postal Act, 1962 (Section 47 and 58)
- Telecommunication Act, 1962 (Section 23 (a), 24 and 27 (b))
- The Chapter on Court Procedure (Section 172) of Muluki Ain
In September 2012 right to information activists launched a public interest litigation seeking a court order that the government promulgate an Act specifically protecting the right to privacy as guaranteed in the Interim Constitution. The writ petition referenced measures taken by police to access individuals' text messages while investigating the murder of Supreme Court Justice Rana Bahadur Bam. The petitioners requested the Supreme Court direct the government to promulgate the Right to Secrecy Act to protect the private communications of individuals from government interference.1
Supervisory Authority for Privacy Laws and Complaints
There is no government authority to receive complaints regarding violations of privacy rights, although people may submit applications and reports concerning violations of their privacy rights to the National Human Rights Commission (NHRC). However, to date, not a single application/report/case has been brought to the NHRC regarding privacy rights violations.
It is also possible to file a case in the Nepalese courts regarding violations of the privacy right. Even without privacy legislation, there are some cases in the courts referring to the constitutional protection of privacy.
Some prominent cases related to the right to privacy are:
- Annapurna Rana v. Kathmandu District Court and Others, Nayadoot, Nepal Bar Association, 1998, No. 2 p. 53, SAB (1998), No. 7, p.11.
- Sapana Pradhan Malla for FWLD v. Government of Nepal, writ no. 3561 of 2063
- 1. "Secrecy right Act sought," The Himalayan Times, 6 September 2012, available at http://www.thehimalayantimes.com/fullNews.php?headline=Secrecy+right+Act....