Pranesh Gautam case and freedom of speech: Practitioners’ Perspective

Review of the movie, Bir Bikram 2 is the talk of the town. Pranesh Gautam, a comedian and member of a popular Nepali Facebook page, Meme Nepal was put into controversy after the makers of the movie filed a case against the comedian alleging him of defaming the movie and the actors and reviewing the movie in such a way that it seriously affected business of the movie. Pranesh was put behind bars which sparked a lot of criticism within Nepal and even international comedians came for his support. Protestors regard this as a blatant action against freedom of speech and against the spirit of democracy and the Constitution. #FreePraneshGautam was one of the trending hashtags in social media over the last week in the country.

We, NIRC, sought responses from four law, justice and human rights practitioners - Apekshya Niraula, Atit Rijal, Barun Ghimire and Ram Tiwari about what they feel about this case. Here is what they opined:

How do you react to the Pranesh Gautam and review of movie Bir Bikram 2 episode?

Apekshya Niraula:

Firstly, Pranesh as a citizen of Nepal and audience of Bir Bikram 2 including all citizens of Nepal have a right to freedom of thoughts and expression. Along with these rights, he has also some duties such as not defame social dignity of any individual or organization. In this regard, Bir Bikram 2 unit also has some duties that need to consider the opinion and voices of their audiences and address it accordingly.

Atit Rijal:

Pranesh Gautam reviewed a movie and criticised it with honest expressions.

Barun Ghimire:

The episode of Pranesh Gautam and Bir Bikram 2 (team) should not be seen as an isolated event. We must look at instance like this from a macro perspective considering all the stakeholders involved. This is emblematic of misuse of power and influence to restrict individual’s rights to expression and opinion.  This is clear example of how people in power can misuse legal system and government apparatus to avoid opinion that is unfavourable to them.

Ram Tiwari:

I am surprised a bit since it signals whether we are inching towards a context of non-coexistence and intolerance. Pranesh and the movie team, both have tried to outsmart each other, but surely at different success scales.

As a restorative justice advocate, I see how law can be used for political gains and that having law doesn’t necessarily mean that we have justice. Law isn’t justice, it’s clear. Nor does having law ensure having peace or social harmony.

While we see civil and political community polarize, we haven’t heard what the actual stakeholders of this issue – Pranesh, Bir Bikram 2 team and the government – have to say on this. What were the reasons/needs behind doing whatever they are doing? We don’t know much.

What are the legal/justice/human rights related aspects related to this case in terms of our country’s legal provisions, cyber law, etc?

Apekshya Niraula:

I have listed some of the legal aspects which will be applicable in this issue.

Article 17, 2 (a) clearly mentions about the freedom of opinion and expression

Article 19 (1) mentions Right to communication: (1) No publication and broadcasting or dissemination or printing of any news item, editorial, feature article or other reading, audio and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.

Article 20: Rights relating to justice (1), 20 (2), 20 (3) and 20 (5)

20 (1) - No person shall be detained in custody without informing him or her of the ground for his or her arrest.

20 (2) - Any person who is arrested shall have the right to consult a legal practitioner of his or her choice from the time of such arrest and to be defended by such legal practitioner. Any consultation made by such person with, and advice given by, his or her legal practitioner shall be confidential.  Provided this clause shall not apply to a citizen of an enemy state. Explanation: For the purpose of this clause, "legal practitioner" means any person who is authorized by law to represent any person in any court.

20 (3) - Any person who is arrested shall be produced before the adjudicating authority within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to such authority; and any such person shall not be detained in custody except on the order of such authority.

Provided that this clause shall not apply to a person held in preventive detention and to a citizen of an enemy state.

20 (5) - Every person charged with an offence shall be presumed innocent until proved guilty of the offence.

Article 23 (1): No person shall be held under preventive detention unless there is a sufficient ground of the existence of an immediate threat to the sovereignty, territorial integrity or public peace and order of Nepal.

Muluki Criminal Code

Number 200 (1) states no person shall be detained on any ill intentions except the law has stated.

Number 305 (1) No person shall rebuke another with the intention of defaming and demoralizing

Number 306 (2a) (2c) – No person shall publish or broadcast any contents intentionally which defame the dignity, morality and popularity of another people. / Mock another people and indirectly accuse them

ICCPR 1966

Article 18 – Right to freedom of thought, conscience and religion.

Article 19 – Right to hold opinions without interference.

Nepal being a state party to ICCPR in accordance with Treaty Act 1990, Article 9 has explicitly mentioned that international law to be given a domestic effect by the state parties to the international convention.

Atit Rijal:

Section 47 of The Electronic Transaction Act is supposedly applied in this case to accuse Mr. Gautam of publishing illegal materials in electronic form whereby the court could order for an imprisonment of up to five years or a fine not exceeding One Hundred Thousand Rupees or both.

The Court has declined the plea for bail since Nepal does not entertain bails on offences that have an imprisonment term exceeding three years. This is however a very unjust concept that the Courts have been following not only in this particular case but in every other cases.

The Police also get the upper hand in cases like these during the period of investigations. So before the "abhiyogpatra" is registered with the court, a plea of bail is rarely heard.

There are stipulations whereby the court is to elaborately analyze the evidences furnished by the police to gain approval for holding someone under custody. This is however seen to be followed in rare instances. The court does very little to protect someone's right to be protected from unreasonable custodies.

Barun Ghimire:

Freedom of opinion and expression is right guaranteed under our constitution and various human rights treaties Nepal is party to. There is legal clarity on what freedom of expression is, when can it be restricted and what are the procedural requirements for it. This row indicated curtailment of individual’s freedom of expression without lawful justification accepted under the constitutional and human rights realm.

Further, we also need to be clear on what offense fall under cybercrime and what does not. There must be clear understanding of defamation too; we need to know difference between criticism and defamation. We also need to make distinction between ‘public figure’, ‘public content’ and ‘private affairs’. The idea of defamation and subjective standard for public figure and private person is different. We must not be blinded by what we think is right or wrong or our liking or disliking, we need to be in line with legal requirement. In this row the cyber law has been wrongfully been resorted.

Ram Tiwari:

We have a constitutionally guaranteed freedom of expression (Article 17). So seen that way, this arrest of Pranesh is unconstitutional. But the constitution and laws have also stipulate that any work to incite hatred or social disharmony is a criminal offense. And again, which acts ‘incite’ what is open to interpretation.

Do you think this move by the government is a right one? Why do you think so?

Apekshya Niraula:

Here, the intention of both the disputing parties is yet to be clear. So in my opinion, the concerned authorities should conduct an investigation on the issue and find out the motive behind the actions of both the parties. If their action as such is proved to be punishable by law the authorities has a responsibility towards it accordingly. However, the dialogue between the involved parties is essential to take further steps.

Atit Rijal:   

It is actually barbaric to keep someone under custody for expressing thoughts. This is not only against the very fundamental right of freedom of expression and opinion but also against the very notion of democratic practice.

The concepts of discretion, judgment and verdicts revolve around societal values and the constitutional guarantees. Orders and decisions of Courts are to show the nature of the society we live in. A judge should consider these very principles while rendering orders, but very little is done to properly analyze the consequences the orders might portray.

The custodial order rendered by the District Court is against the constitutional guarantee of freedom of expression and opinions.

Barun Ghimire:

Government has obligation to respect, protect and fulfill the rights of individual. The role of government body particularly Nepal Police has not been up to the mark desirable in democratic society where rule of law prevails. The way Pranesh was arrested, held in judicial custody and charge-sheet not being filed in due time reflects that government agency has failed to fulfill its obligation.  

Ram Tiwari:

It might be ‘right’ from the perspective of the government or law. But the main point is, it isn’t contributing anything to what the government generally wants to happen – peace and social harmony. And when people are suffering because of this act, this is certainly not the right move.

Do you think social media personalities/Youtubers/comedians/social commentators need to draw a line as well? If so, why and how?

Apekshya Niraula:

Being a law abiding citizen, every citizen is liable to follow certain duties while enjoying their rights. The professional ethics must be followed by all the professionals that will avoid the problems of similar nature in future. We are living in a diverse society and have a range of social media followers. Thus, the social media personalities/Youtubers/comedians/social commentators and others must be sensitive of individual dignity, culture, tradition, religion, geography, political belief and other aspects before producing their news or opinion.

Atit Rijal:

In this case Mr. Gautam freely exercised his right to voice his thoughts, whereby he chose to do it humorously. These type of aggressive humors have been accepted by civilizations all around the globe apart from some states which choose to govern arbitrarily.

If the constitution guarantees freedom of opinions and expressions, then the person exercising such rights also has the right to offend the listener or viewer. The first amendment of the Constitution of the United States provide restrictions on threats and incitement while "offensive" speech is protected (Offence here is not a commission but is related to feeling upset, annoyed or resentful).

Free Speeches are actually the foundations of a democratic society. Offending someone is not against any laws but inciting them to act in an illegal manner or threatening them are against the notion of right to speech.

If someone is offended over someone else's expression, then he/she should again opine against such expressions and voice a counter-thought. Isn't that supposed to create reasonable debates? And isn't this the very notion of democracy?

Unless the media personalities/Youtubers/comedians/social commentators are not inciting violence and are not threatening or deliberately hiding facts so as to twist the issue, they do not have to worry about crossing any lines.

Barun Ghimire:

There must be limitation and line need to be drawn. For instance, hate speech, racial abuse, content aimed at disturbing public order, undermining national sovereignty etc. and sort of content restricted under domestic and international law must be complied with. Media personalities are not above law and must comply with legal standards.

Ram Tiwari:

Yes! Before we do something on public, we certainly should be mindful of its consequences. The same rule applies to the government.

What do you think is the long term solution to this problem?

Apekshya Niraula:

As a restorative justice enthusiast, I think the longer term solution to the problem is a broader dialogue with the involved parties of this incident where the needs of the both parties should be understood by each other and let them seek the solution by themselves. Since, we are only relying on the assumptions and other news coverage, we aren’t in the position to state who or what is wrong. Both of the parties should be aware about not jeopardizing the rights of each other 

Atit Rijal:

In the specified case, the district court order can be challenged instantaneously with higher courts that have the right to intervene over such orders. These successful applications could act/serve as precedents for protection of freedom of opinions and expression. Also the judges must interpret statutes in harmony to the Constitutional guarantees and international democratic principles.

Barun Ghimire:

  1. Awareness and clarity on the content of law
  2. Training of law enforcement officials on new form of crimes
  3. Holding those who misuse legal system accountable
  4. Vigilance while drafting of laws

Ram Tiwari:

Creating spaces for diversity and difference is important. This needs both short- and long-term engagement from the government and civil society.