Origin and Development of Press Law in Nepal: A Historical Perspective

Origin and Development of Press Law in Nepal: A Historical Perspective

·         Suman Acharya

1.1 Background

The legal provision pertaining to Nepalese media dates back to 1901 AD, when the loyal among tyrant Rana prime Prime Minister Dev Samsher issued the special decree named 'Sanad' to censor the publication and management of Nepalese eldest newspaper called Gorkhapatra. Before the special decree, no legal provision was issued and assured in media sector because no arduous newspaper except the literal magazine was in existence and no possibility to make any considerable effect against the Rana tyranny. With the passage of time, various political governments started to impose various laws and regulations, both for and against media sector to make deep impact on freedom for assemblage, demonstration, dissemination of handbill, street marches, freedom for printing, publication and broadcasting sector etc. Indeed, there was no clear 'rule of law' to rule the nation and even to rule the media sector within the Rana regime. However, we can't discard the situation and provision that are issued by successive government after the issuance of special decree named Sanad by Rana government.

1.2 Early period

Nepal did not have modern printing press until 1853. When Prime Minister Jangha Bahadur Rana visited the England and France in 1850, he brought modern hand press called "Gidde Press" as a souvenir. This press was used to print ticket and 'Muluki Ain' in 1853 but this law mentioned nothing about printing sector except the book. 'Sudha Sagar', first typical Nepali language literal magazine, published in 1898 as the investment of private sector in the initiative of Motiram Bhatta, had got no imposition of restriction. In the meantime, the first issue of regular vernacular newspaper entitled Gorkhapatra was appeared in 1901 under the initiative of government. So, Dev Samsher led government issued special decree 'Sanad' to control the publication of Gorkhapatra, which covered what to publish, and what not to publish as of ethical standard. It mentioned nothing about prosecution and punishment for those people who violated the content of 'Sanad'. This effort proved itself as a first breakthrough, modern and the specialized effort to regulate the specific media in the history of press law in Nepal.

1.3 Press law from Sanad to democracy

When Prime Minister Chandra Samsher dethroned the Dev Samsher, he started to amend all plan, policy, law that were issued by Dev Samsher to make them favorable to Rana oligarchy. He thought that only the imposition of law on Gorkhapatra under the name of Sanad wasn't covered other media or publication typically for books. So he formed a committee “Gorkha Bhasha Prakashani Samiti" in 1913 under 'Muluki Ain' but later it used to control the printing and publication process in 1916. Without the consent of this committee, no book, and other publication could be published. It was mentioned in the function of this committee that if the book published with publishable or unrestricted matter without the consent of this committee, it would fine fifty rupees only but if the book published with restricted matter without consent, in that case all books would be confiscated and scribe would be punished, imprisoned and bailed. For example - 'Makaiko Kheti' of Krishana Lal Adhikari who wrote this book figuratively mentioning indigenous and exogenous dog. The ruling class thought that this language was targeted to them. So, he was imprisoned and got death under punishment by the cause of mental and physical torture.

                                                       

Registration policy also issued from 1937. Without the registration the government would restrict the publication. So 'Sharada' got 001 and 'Gorkhapatra' got 002 numbers and alike but after the promulgation of democracy, this policy was halted for the time being, mentioning that every path of autocratic and tyrannical government wasn't acceptable. The expert has mentioned now that this policy was the better than other activities within Rana regime.

Till these days, the countries of the world were gradually going to be independent and transformed from one environment to other like India, China and other country. So to avert the outrage against Rana regime, which was inflamed slowly, the government pretended that it was responsible to public formulating different kinds of law and regulation in different field. With this view the Prime Minister Padhma Samsher promulgated first written constitution named 'Nepalko Vaidhanik Kanun - 2004' in 1947, which included freedom of speech and expression with restrictive matter. After the three week, he resigned from the post of premier and his constitution wasn't implemented.

The successive Prime Minister, Mohan Samsher, amended the constitution and promulgated new constitution in 1948 which became a basis of 'Fundamental Rights Act - 1948'.  'Chapakhana Ra Prakashan Ain - 2005' included the issues of printing press operation procedure, registration of newspaper, the limitation of freedom of publication and punishment for non-compliance in various sector. The blandishment of Mohan Samsher couldn't prove his effort genuine. The emblazed outrage and vandalism against government spread throughout the nation.

1.4 Democratic period

People fought against treacherous and wild Rana regime to get the basic fundamental right who were exploited and suppressed by autocratic behavior of Rana government. Finally the Rana government couldn't avert outrageous and surging revolutionary people in 1951. With the subversion of the political system, the possibility of legalized judiciary system established as a new way of ruling system. The king Tribhuwan declared the "Nepal Antarim Shashan Vidhan-2007" replacing the 'Nepalko Vaidhanik Kanun - 2004', which proved itself as a first democratic constitution. As a result, the right and power of individual and family of Rana was passed away. Under the constitution of "Nepal Antarim Shashan Vidhan - 2007", the Nepalese press world tasted the open environment and an investment and participation of private sector were increased. The tension of unnecessary restriction of the media sector overthrew thoroughly.

"Chapakhana Ra Prakashan Ain - 2007" replaced the "Chapakhana Ra Prakashan Ain-2005", which had allowed the newspaper registration with or without sureties but the rest of the content were similar as precedent act. However, newspapers were not allowed to go against the government, ethnicity, religion and other social system except the healthy criticism. Indeed, the "Nepal Antarim Saashan Vidhan - 2007", second constitution of Nepal confirmed the public's basic human right, allowed foundation of democratic institution, and legalized political party and modernization that included extensively press freedom as a rudimentary right. With the promulgation of constitution in 1951, the radio Nepal also formally established which made deep and irreversible impact on Nepalese people to flourish and endorse social, cultural, economic infrastructure of Nepal.

The act "Chapakhana Ra Prakashan Ain - 2008" was issued in 1952 to control the quantitative flood of newspaper and to emphasize on the qualitative development of publication. Like this 'Chapakhana Ra Prakashan Ain - 2009" also issued which had given the absolute-like right to media. So, media were out of control and started to bring pornography, obscenity, libel and slander. The magistrate confiscated and expelled the registration of some newspaper to control the derailed publication in 1953.

However, "Nagarik Adhikar Ain - 2012" generated right pertaining to freedom of speech and publication, right to adopt any occupation, wage earning, industry or trade for all citizen but practically the freedom of speech and publication was far from the reality because of the unavailability of trade, business, transportation and other infrastructures. With the provision of "Prakritik Sampada Sanrakshan Ain - 2015", the press and other medium were obliged to preserve and protect with the support of communication revealing those persons and situation that were the cause of destruction and degradation of area.

The previous Act of printing and publication was amended in 1957 to make it favorable to ongoing election. As a result, various newspapers appeared as a mouthpiece of various political parties with the series of adult franchise election in 1958. As an aftermath the first parliamentary constitution enshrined freedom of speech and expression with reasonable restriction creating open environment for press world. This constitution showed the sign of pluralism in media sector. The "Gali Ra Beijati Ain - 2016" was also issued in 1959 to safeguard the right of the common people to ensure their prestige, honor and dignity and to provide punishment for offences of libel and defamation but this act seemed inert later which was used to control the criticism of politician after the royal takeover instead of common people. The basic framework of democratic press law was realized but aborted them in embryo stage without development and advancement.

1.5 Royal takeover to referendum

When king Mahendra dismissed the multiparty system in 1960, all legal provision enshrined by 1959 constitution was withdrawn. The cadres of multiparty system were detained and king declared him as a president of government declaring Panchayat system for experiment in 1959. The open environment for press became the pipe dream, only the stonewalling of the government started to entangle with the press. The press faced unfavorable situation. "Jasushi Ain-2018" and "Rajya viruddhako Ain-2019" also stood as a fence to bar the publication sector from criticizing the government and to seek and investigate the government transaction. Later the "Hulak Ain-2019" also used to make impact on the circulation of newspaper and other publication where unflavored publication to government hadn't chance to circulate from one place to another by postal office.

In 1962 the government established 'Rastriya Sambad Samiti" as a news agency under the provision of 'Rastriya Sambad Samiti Act - 2018'. This act showed the 49% investment from private sector in news agency but it didn't implemented. This action was taken, as milestone of Nepali press but the private sector couldn't get any place. As a result it established it as a monopolistic media that supported and recited the story of government only. "Gorkhapatra Sansthan Ain - 2019" also issued to make quite free it in the management and publication process making little bit autonomous to economical transaction but it didn't become independent in content.

In 1962, the king issued another constitution replacing the democratic constitution, which didn't mention Panchayat in the beginning but mentioned that the system was transformed only for short period of time as a partyless system. This constitution also mentioned and guaranteed the fundamental right of people including press freedom with restriction. On the basis of this constitution, the government issued the "Chapakhana Ra Prakashan Ain - 2038" replacing the previous one had granted the various power to local administration and enforced Rs. 1000 for registration of newspaper but the content of this act was no different than previous one except the content of monarchy-guided Panchayat. This act was quite arduous and tough than previous one. This new had included the provision of cancellation of registration, bail for non-compliance, restriction on the circulation of foreign newspaper, 1500 penalty for unauthorized publication but this act allowed press for healthy criticism except the criticism of Panchayat system. This act also mentioned about the press council.

This constitution was amended in 1965 declaring explicitly the partyless Panchayat but the rest of contents were same. The "Pratilipi Adhikar Ain - 2022" also declared in 1965. It preserved the right of author from illegal exhibition, translation etc. except the excerpt use but practically it didn't implement and the effort became vain. "Chalachitra Ain - 2026" also promulgated in 1970 to regulate the production, exhibition and distribution of cinematograph for the convenience of general public, which enforced the censure board to pass the cinema for exhibition to prevent the antinational and antigovernment content. In 1971 new communication policy formulated with slogan of communication for development to make the communication favorable to Panchayat system and to undermine the different party. Same year, "Sanchar Sansthan Ain - 2028" issued to formulate legal provision for the establishment of communication corporations with the view to promote and consolidate economic development through the delivery of communication services to the public for easy and available at reasonable cost.

To avoid the criticism of Panchayat and to make communication strategy favorable to them, the government again promulgated new constitution in 1976 replacing the precedent amended constitution to control the party-favored mission journalism and to prevent Panchayat system from severe criticism by democratic-wing media. Based on this constitution, new "Chapakhana Ra Prakashan Ain - 2032" was issued in 1976 stagnating the development of newspaper and other publication. This act was tougher and very stringent than other act to curb fiercely the press world. This act mentioned that the publisher didn't have the right to appeal to a court about the cancellation of registration and forfeiture of deposit. If the government took any action against publication on the series of investigation, no appeal or writ was lodged or accepted in the court. So, this act was more stringent and toughest in the history of Nepali press law.

1.6 Press law after referendum

Gradually the outburst against the Panchayat government was fueled by stern student movement from 1975, which was inflaming other public also as so many innocent people who killed, intimidated and lost their basic human right. As a result thousands of people went against government and press world as well. The throne of government was shaking. Finally the king declared the date of national referendum in 1980 that turned into reality in 1981. After the referendum the improved Panchayat government amended the stern press law imposed in 1978. A new "Chapakhana Ra Prakashan Ain - 2038" was issued in 1982 on the basis of royal press commission report formed in 1981, which had relaxed little bit than the provision of precedent press and publication act. This act had given the right to publisher of any publication to appeal to court within 35 days of action by government, abrogating the bar and restriction imposed on press by previous act. However, if the publication went against royal family, national integrity, sovereignty, fundamental principle of constitution and unsupported of political party, the government could take severe action against alleged person or organization. To implement this act, "Chapakhana Ra Prakashan Niyamawali - 2039" was issued in 1983 that enforced large amount of money for registration had been severely criticized by private sector. The amount of money for registration was 5000 and if the publication went against the spirit of government policy, the publication might be fined more than again 5000 and the possibility of cancellation of registration also mentioned.

So again the government was obliged to amend unsatisfactory point of precedent regulation and heralded new regulation in 1984 relaxing the environment for private sector. Although the content of this regulation were against the spirit of constitution of 1975 and the spirit of “Chapakhana Ra Prakashan Ain - 2038" that proved the government was quite flexible than before. "Likhatko Goptyata Sambandhi Ain, 2039" was also issued in 1982 for the maintenance of security, peace and order of the country, to make arrangements providing for the classification and preservation of secrecy of protectable and important government and public office records and treaties.

As a result the total numbers of private publications were increased. The partisan press spurred democratic notion widely. To avert this problem, Nepal government issued in 1989 "Rajya Viruddha Aparadh Ra Sajaya Ain - 2046" to stop the hatred, malice and disrespect by writing, symbol or other means and alike against the king and ongoing political system. From time to time, the restriction was tightened and freed but people's movement didn't stop. Finally the Panchayat government obliged to bend down in front of general public respecting their will subverting political system. With the transformation of political system, the provision on press law also transformed from rigid to mild that changed the scenario of press thoroughly. Within these periods Nepali press experienced both muzzle and free stage that demonstrated the sign of somehow achievement but overall this period was worse than other period in the sense of regulatory and controlling mechanism.

1.7 From re-establishment of democracy to parliamentary proclamation

After the restoration of democracy, Nepali press world enjoyed extremely free environment until 2058 BS. The constitution of Nepal – 2047, has guaranteed various provision related to media world. On the basis of constitution, Printing and publication Act – 2048, Broadcasting Act – 2049 and other regulations of these acts have tried to demarcate and shape the media of Nepal. There was only one TV and radio during that time but these Acts have depicted the further private electronic media development in Nepal.

Since 2058 BS the Nepali press world had been doing practices under the furious government that is stagnating and threatening the expansion and accessibility of press sector. But the fate of the Nepali press had morphed into the bad one with royal massacre in 2058. However, Nepalese press, one of the best for constitution enshrined press freedom, had been finally turned into ruin when the state of emergency was imposed on 26 November 2001. However the root of deteriorating the press freedom was seeded shortly after the declaration of constitution of Nepal when the rebel, Maoist group, commenced their insurrection and insurgency in 2052 BS. The development of media industries after the restoration of multiparty democracy had been endangered after the declaration of state of emergency that deteriorates the practices of principle of journalism like press freedom, accuracy, ethics, fairness, watchdog etc while insurgency group of Nepal attacked and torched the dozen of barrack of military person and checkpoint of the police stations killing many of them on the crossway firing. Going on tough restrictions became the backwardness of Nepali media world. The emergency had suspended various article of the constitution of 1991 publishing orders in 'Rajpatra'.

February 1, 2005, is taken now as one of the second dark night after the 2001, for press world of Nepal.  The imposition of state of emergency made deep negative impact on practicing the principle of journalism that depicted suppression of press freedom and fundamental right of the people as legal system than ever before in the history of Nepali press world. The freedom of speech and expression, right to printing and publication, the right to information, the right to privacy except habeas corpus and other some fundamental right were suspended. Royal government imposed Media Ordinance, which hooked the media in the favor of royalist banning news on FM Radio.

1.8 After parliamentary proclamation in 2063

After the parliamentary proclamation on April 24, 2006, Nepali media have regained its power including freedom of speech and expression. We expect that the situation of Nepali media will be better because all member of government have understood the role of media in preservation of democracy but it is necessary to wait to look after it for a time. However, the situation is still uncertain in the case of working journalist, right to information with the prejudice of government. The government is still reluctant to provide information to public openly. Many spokespersons are still hiding information. These trends are strongly necessary to be discouraged by civil society including other media world. 

Interim Constitution - 2063 of Nepal has added broadcasting rights in addition to the constitution of 2047 in terms of the press freedom. Otherwise all subject matters are same on those Articles relevant to press freedom of Nepal. Article 12(3) (a) of the current constitution has guaranteed freedom of opinion and expression under Right to Freedom. Under this provision, Nepali press can enjoy freedom of speech and expression as general citizens of the nations. It is believed that no term freedom of press is required to be mentioned in constitution which represents the freedom of speech and expression.  Article 15 of this constitution has guaranteed right regarding publication, broadcasting with reasonable restrictions. Under this provision, media cannot publish or disseminate issues undermining the sovereignty or integrity of Nepal, jeopardizing the harmonious relations among the peoples or supporting any act of sedition, defamation, contempt of court or incitement to an offence; or on any act contrary to decent public behavior or morality. Registration cannot be canceled and obstruction cannot be made. Article 27 has enshrined the Right to Information for publicly important information with reservation of confidential information. To implement it, Right to information Act 2064 is already enacted. However, government is still refusing to provide common information as secret information. Classification of information is required to be reviewed as per the reality. Article 28 has enshrined the Right to Privacy which also applied to media as common citizens. Violation of Right to Privacy by media isn’t reviewed yet.

1.10 Conclusion       

Thus, history of press law in Nepal seems the history of struggle. With the transformation of political system, the constitutional provision, law, regulation and ordinances have also changed radically. This transformation seems the by-product and aftermath of continuous struggle. According to the differences in the political scenario, the constitutional principle also changing which seems on the basis of advanced concepts about rule of law that lead the constitution towards the concept of civil rights. That concept leads the liberal constitution, which lead towards the liberal press laws and regulation. Although the constitution provision of 1990 and Interim Constitution 2006 and enacted laws are liberal, official show undemocratic and restraining culture time and again.

References

·         Bhattarai, Binod, Nepali press under emergency, Centre for Investigative   Journalism, 2004.   

·         Birahi, Harihar (Ed.), Prakashan Ko Digdarshan, Press Council – Nepal, Kathmandu, 2060

·         Coups, Kings  & Censorship,  International Federation of Journalists 2005, Media Monitoring Report 2005.

·         Dahal, Kashiraj, Aamshancher Ra Kanun, Nepal Press Institute, Kathmandu, 2058

·         Devkota, Grishma B.,Chapakhana Ra Patrapatriko Itihas, Shanja Prakashan, 2051

·         Kharel, P(Ed), Media Nepal 2000, Nepal Press Institute, Kathmandu 2000.

·         RR department of JMC, Patrakarita Bebastha Ra Bebahar, Kathmandu, 2055

'The End…'