Right to Information and Right Communication in Nepal

Constitution Study #9: A reflection on the conflict between the Right to Information and the Culture of Secrecy

Case Studies on Right to Information and Right to Communication

According to a report published by FreedomInfo, in 2010, following deadly communal unrest in Kapilvastu, local leaders sought the government’s investigation report to secure fair compensation. The Home Ministry initially refused, citing cabinet secrecy. Undeterred, they appealed to the National Information Commission (NIC), an institution established by the Right to Information Act, 2064 (2007). The commission ordered the government to release the report, which was delivered a year later.

During King Gyanendra’s direct rule after February 1, 2005, Radio Sagarmatha, South Asia’s first independent FM station was banned for broadcasting an interview of Prachanda, the black-listed Maoist leader. The station filed a complaint against the Royal Government’s movement in the Supreme Court. Radio Sagarmatha resumed its broadcast 48 hours and 47 hours following the Supreme Court’s verdict upholding the right to communication.

The above examples show that information is power, and communication is key to unlock it. In a democratic society, access to information and freedom of communication are not only constitutional rights, but also essential tools for transparency, accountability, and informed public opinion. The Constitution of Nepal enshrines both the Right to Information (Article 27) and the Right to Communication (Article 19) as fundamental rights. Together, these rights create a framework through which citizens can engage with the state, demand accountability, and participate meaningfully in governance.

Understanding the Rights

Right to Information (RTI)

Article 27 of the Constitution of Nepal states:

“Every citizen shall have the right to demand and receive information on any matter of his or her interest or of public interest. Provided that no one shall be compelled to provide information on any matter which must be maintained confidential in accordance with law.”

This right empowers citizens to access government-held information, including policies, decisions, budgets, expenditures, and plans. It is a legal tool for fighting corruption, ensuring justice, and promoting good governance.

Right to Communication

Article 19 guarantees the freedom of opinion and expression, as well as the freedom of the press, publication, and broadcasting, provided that these rights do not:

• Undermine the sovereignty, territorial integrity, or national unity,
• Violate public decency or morality,
• Encourage caste, ethnic, gender, or religious discrimination or hatred,
• Jeopardize the harmonious relations between federal units.

This right ensures that individuals and media can communicate, report, and express freely, with reasonable legal restrictions.

Procedures for Obtaining Public Information

To operationalize RTI, Nepal enacted the Right to Information Act, 2064 (2007). The Act outlines the following procedures:

1. Filing a Request: Any Nepali citizen can file a request with a Public Information Officer (PIO) in the concerned office by filling out a standard form or writing an application.
2. Response Time: The PIO must provide the information within 15 days. In case of threats to life or liberty, the time limit is 24 hours.
3. Refusal and Appeal: If the information is denied or not provided, the applicant can appeal to the National Information Commission (NIC).
4. No Need for Reason: The applicant is not required to state the reason for seeking information.

The Economic Survey also emphasizes digital progress in governance, such as broader access to information and banking through ICT expansion.

Exceptions: What Information is Not Accessible

Both the Constitution and the RTI Act list certain exemptions. The following categories are considered restricted:

• Matters that jeopardize national security or sovereignty
• Information that undermines foreign relations
• Internal deliberations of public bodies
• Confidential information relating to individuals’ privacy
• Trade secrets or intellectual property of private institutions
• Ongoing investigations where disclosure may impede justice

These limitations attempt to balance openness with legitimate state and individual interests.

Connection with the Right to Privacy

While RTI promotes transparency, Article 28 of the Constitution guarantees the Right to Privacy. This includes:

• Privacy of personal life, residence, property, documents, correspondence, and reputation
• Protection from arbitrary surveillance or disclosure of personal information

Therefore, RTI must be carefully implemented to not infringe upon the privacy rights of individuals. For instance, information about a person’s health, bank account, or family life cannot be disclosed without lawful justification.

This tension between transparency and privacy necessitates a nuanced approach. The state must develop clear guidelines and train public officers to differentiate between public interest and private confidentiality.

Tension between RTI and the Culture of Secrecy

As we have often seen in this Constitution Study series, there are always gaps between constitutional provisions and implementations. Nepal’s government and bureaucracy have a culture of secrecy because of rampant corruption and the silo problem. The government listed 154 kinds of information as “classified,” in 2008. The National Information Commission ordered the government to revise the list.

In 2011, the government again tried to classify 88 types of documents as inaccessible, but the Supreme Court ruled against the decision. In 2023, The government listed 87 documents as “classified”, including those related to procurement (which should actually be transparent), but the list is unavailable in the public domain.

Besides corruption, another reason for problems in classification of documents in Nepal is the lack of clear provisions in the Right to Information Act and the lack of its coordination with the Secrecy of Documents Act 2039 (1982).

Conclusion

The Right to Information and the Right to Communication are pillars of Nepal’s constitutional democracy. They empower citizens, ensure accountability, and enhance public participation. However, their misuse and over-restriction can undermine these very goals. To strike the right balance, the state must improve legal awareness, ensure institutional readiness, digitize access, and respect privacy. Only then can these rights truly serve their constitutional promise of building an open and just society.