Constitution of Nepal 2072 2015There are various provision related

Constitution of Nepal, 2072 (2015)

There are various provision related to women fundamental rights. Articles 16(1), 21(2), 28, 29(1), 38(3) and 39(6), (7) are the prominent one. Article related to- Right to live with dignity states that, “Every person shall have the right to live with dignity.”[ Constitution of Nepal, 2072 (2015). Article 16(1).] Similarly, Article related with- Right of victim of crime states that, “A victim of crime shall have the right to justice including social rehabilitation and compensation in accordance with law.

”[ Constitution of Nepal, 2072 (2015). Article 21(2).]

Article related with- Right to privacy states that, “The privacy of any person,… his or her character shall, except in accordance with law, be inviolable.

”[ Constitution of Nepal, 2072 (2015). Article 28.] Article related with – Right against exploitation states that, “Every person has the right against exploitation.”[ Constitution of Nepal, 2072 (2015). Article 29(1).] Article 38 related with- Rights of women states that, “No women shall be subjected to physical, mental, sexual, psychological or other form of violence or exploitation….Such act shall be punishable by law, and victim shall have the right to obtain compensation in accordance with law.”[ Constitution of Nepal, 2072 (2015). Article 38(3).]

Similarly there is the provision of- Rights of child which states that, “No child shall be…subjected… to abuse…physical, mental, sexual or other form of exploitation or improper use by any means or in any manner.”[ Constitution of Nepal, 2072 (2015). Article 39(6).] Similarly, it further states that, “No child shall be subjected to physical, mental or any other form of torture in….or other place and situation whatsoever.”[ Constitution of Nepal, 2072 (2015). Article 39(7).]

Country Criminal Code, 2074 (2017)

There are few provisions related to cyber-crime.

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There is the provision of ‘prohibition of taking or disfiguring photograph of any person without his or her consent.’[ Country Criminal Code, 2074 (2017). Section 295.] Also, there is the provision of ‘Prohibition of breaching privacy through electronic media.’[ Country Criminal Code, 2074 (2017). Section 298.]

Electronic Transaction Act, 2063 (2006)

The Electronic Transaction Act(ETA), 2063 (2006) is the main instrument which regulates the cyber-crime in Nepal. The Act has various provisions for the violation of copy right, electronic data exchange etc however the sole provision related to CCAW is in Section 47 (publication of illegal materials in electronic form).

It states that, “If any person publishes or displays any material in the electronic media including computer, internet which are prohibited to publish or display by the prevailing law or which may be contrary to the public morality or decent behavior or any types of materials … shall be liable to the punishment with the fine not exceeding One Hundred Thousand Rupees or with the imprisonment not exceeding five years or with both.”[ Electronic Transaction Act, 2063 (2006). Section 47(1).] It also states that, “If any person commit an offence … time to time he/she shall be liable to the punishment for each time with one and one half percent of the punishment of the previous punishment.”[ Electronic Transaction Act, 2063 (2006). Section 47(2).] The Act proposes the Information Technology Tribunal to initiate the problem and adjudicate the offences concerning computer.[ Electronic Transaction Act, 2063 (2006). Section 60.]

Similarly, Information Technology Appellate Tribunal has also been proposed by the Act to the appeal against the order or the decision made by the Tribunal and to hear the appeal against the decision or order made by the Controller or by the Certifying Authority.[ Electronic Transaction Act, 2063 (2006). Section 66.] According to the Act, until the Tribunal is formed, the jurisdiction to hear the procedure and adjudicate the offences concerning computer shall be done by the District Court as designated by the GoN. Hence, Kathmandu District Court has been designated to exercise the jurisdiction until the Tribunal has been formed.

Electronic Transaction Rules, 2064 (2007)

The Electronic Transaction Rules, 2064 (2007) assists the Electronic Transaction Act, 2063 (2006) however it too does not the cover the cyber-crime. The Rule is- to accept document in digital form.[ Electronic Transaction Rules, 2064 (2007). Rule 37.] However, the Rule is so ambiguous that it does not states whether the cyber-crime can be presented as evidence. It states that, “To accept documents in electronic form …by any governmental agency or corporation under the ownership of Nepal Government…..”[ Electronic Transaction Rules, 2064 (2007).]

Children’s Act, 2075 (2018)

There are some provisions in The Act Relating to Children, 2018 (2075) which can be related with cyber-crime against women. Such provisions are included in Sections 2, 7, 11, 16, 17, 18, 19, 25, 26, 66, 68 and 72. The Children’s Act, 2075 (2018) has defined children as, “Children means persons who have not attained the age of eighteen years.”[ Children’s Act, 2075 (2018). Section 2(j).] It also defines child pornography as, “child pornography means taking or reproducing moving or still photograph(s) of children that exhibit their sexual organs or by engaging them in fictitious sexual activities, displaying, or causing to display, children’s obscene pictures by means of newspapers, posters, print media, motion pictures or other communications media, and the said term also refers to production, sale and distribution, import or export, collection or dissemination of such materials.”[ Children’s Act, 2075 (2018). Section 2(m).]

The Act also has the provision of right to protection and confidentiality as, “Every child shall have the right to protection from all forms of physical or mental violence and torture…, inhuman behaviour, ….. sexual abuse and exploitation by her/his father, mother, other family member or guardian, teacher and other persons.[ Children’s Act, 2075 (2018). Section 7(5).] It also states that, “The GoN, state governments and the local levels may take necessary measures and formulate and enforce guidelines for children’s protection.”[ Children’s Act, 2075 (2018). Section 7(10).] And states that, “Every child shall have the right to confidentiality in matters of her/his body, residence, property, documents, data, correspondences and character.”[ Children’s Act, 2075 (2018). Section 11(1).] Also on confidentiality the Act warns that, “No person shall engage in, or cause to engage in, generation, collection, publishing, printing, exhibition, sale and distribution or transmission of, through any means, personal information, details, photo or video of any child that harms her/his character or causes her/him shame, remorse or disgrace.”[ Children’s Act, 2075 (2018). Section 11(2).]

Also, there are some “duties towards children” in Chapter-3 as following; the priority to be according to child’s best interest[ Children’s Act, 2075 (2018). Section 16.], duty of family or guardian[ Children’s Act, 2075 (2018). Section 17.], duty of state[ Children’s Act, 2075 (2018). Section 18.], duty of media.[ Children’s Act, 2075 (2018). Section 19.] Also, “victim child’s right”[ Children’s Act, 2075 (2018). Sections 25 &26.] are also mentioned in the Act.

The “offence against children” are defined in Section 66 of Chapter-8. The following incidences adds to the “child sexual abuse” according to the Act, “show, or cause to show, obscene pictures, audio-visual recordings or other such materials or display, or cause to display, expressions or gestures that reflect obscene or sexual conduct or behavior or display, or cause to display, child pornography”[ Children’s Act, 2075 (2018). Section 66(3)(a).]; Distribute, store or use actual or fictitious obscene pictures or audiovisual materials of children[ Children’s Act, 2075 (2018). Section 66(3)(b).]; and “use children in production of obscene acts and materials.”[ Children’s Act, 2075 (2018). Section 66(3)(d).]

Clarification in the term “child sexual abuse” has been stated as, “Notwithstanding what is contained in Sub-section (3), anything expressed by means of writing, speaking, gesturing or displaying any word, picture, audio, visual medium and object or material on a sex-related topic without displaying obscenity with the aim of imparting information and education or an act performed with good intent in the course of treatment of children or for saving children from an accident or danger shall not be deemed acts of sexual abuse.”[ Children’s Act, 2075 (2018). Section 66(4).]

Chapter-9 of the Act constitute “Punishment and Compensation” for violation of above mentioned instructions. The Act states that, “If any person, organization or agency violates any of the child rights spelled out in Section 2, …such person or the chief of such organization or agency shall be imposed with a fine of up to fifty thousand rupees.”[ Children’s Act, 2075 (2018). Section 72(1).] The Act add up to, “In case of an act as per segments (a), (b) of Subsection (3) of Section 66, a fine of up to seventy-five thousand rupees and imprisonment of up to three years”[ Children’s Act, 2075 (2018). Section 72(3)(b).]; also mentions that, “In case of an act as per segment (d) of Sub-section (3) of Section 66, a fine of up to eighty thousand rupees and imprisonment of up to four years.”[ Children’s Act, 2075 (2018). Section 72(3)(c).]

The Act also has punishment for inciter, attempt, assist and repeated offender as, “A person who incites others, attempts or abets to commit the offences stated in Subsections (3) of Section 66 shall be punished with half the fine and imprisonment imposed to the principal offender”[ Children’s Act, 2075 (2018). Section 72(4).]. And “In case a person who has been punished once under this Act repeats such offence, she/he shall be subjected to an additional punishment of twenty-five per cent of the punishment pursuant to this section.”[ Children’s Act, 2075 (2018). Section 72(6).]

In the compensation part the Act states that, “The child court shall pass an order on the offender, of an offence against children as per this Act and other prevailing law, to pay, either in lump sum or in installments, a reasonable amount of compensation that is not less than the amount fined to the offender, determined on the basis of the loss caused to the education, and physical and mental health, development and family of the child victim, among other factors”.[ Children’s Act, 2075 (2018). Section 73(1).] Also, the Act has the provision of payment of compensation from “children fund” if recovered compensation is negligible or inadequate in comparison to the offence against children.”[ Children’s Act, 2075 (2018). Section 73(2).]