Right to Information in Nepal


Historical Development

Right to Information is one of the lately recognized rights in Nepal. It has been only two decades of its recognition as fundamental right of Nepalese citizens. For the first time, 1990 Constitution guaranteed right to information as a fundamental right to its citizen. It recognized right of citizens to demand and obtain information held by public agencies on any matter of public importance. Despite the constitutional guarantee, it took a long time to persuade the government to enact law on right to information. 

In 1993, then government tabled first draft of Right to Information Act in the parliament. However, the draft was rejected by the parliamentary committee following the opposition of the stakeholders including media. Civil society argued that the draft was aiming to create a formal secrecy regime instead of giving effect to the constitutional guarantee. 

In this milieu, media organizations and journalist took initiative in 1997 and formed a ten-member independent drafting team on freedom of information. The Bill was tabled in the parliament in 2001. Due to the political upheavals, the bill could not get priority and was never discussed. Frequent political changes stood as a major hindrance for the enactment of freedom of information law in Nepal. 

Interim Constitution 2007 was second consecutive constitution which guaranteed right to information as a fundamental right of the citizen. It extended the right by providing access not only to information of public importance but also to individual information. Now every citizen is empowered to seek information of his/her individual interest as well as information of public interest. 

Nepal government formed a taskforce on September, 2007 to draft a bill on right to information. Based on that draft, the government enacted a specific law to regulate right to information on July 18, 2007. This law is an outcome of enormous effort by the stakeholders and civil society. 

Right to Information Act, 2007 has provided for an independent National Information Commission for the protection, promotion and execution of Right to Information in Nepal. It was established on June 14, 2008. Further, Regulation on Right to Information was ratified and came to effect on Feb 9, 2009.

Existing Legal Framework

Right to information is primarily governed by the Interim Constitution 2007, Right to Information Act 2007, Right to Information Regulation 2009, Classification Guideline issued by the Classification Committee formed pursuant to Article 27 of the Right to Information Act. Apart from these instruments, a number of other statutes regulate right to information. 

Interim Constitution, 2007 in its article 27 has ensured Right to Information as the fundamental rights. It provides citizen the right to demand or obtain information on any matters of concern to himself / herself or to the public. However, it does not compel to provide information which is to be protected by the law. 

Section 3 and 30 of Right to Information, 2007 has empowered Nepalese citizens to exercise this right to obtain of information of public importance and individual concern, respectively. This Act has also made a separate provision for the classification and protection of the information in its section 27 and 28. Protection of the whistleblower and the requirement of proactive disclosure by the public agencies are considered as the remarkable provisions of this Act. 

Right to Information Regulation 2009 A.D was adopted in accordance with the section 38 of the Right to Information Act, 2007 for the implementation of the right embedded in the Right to Information Act, 2007. This regulation is also important for the proper functioning and management of the issues relating to the National Information Commission. It deals with different procedures relating to the exercise of Right to Information such as process of filing the application, contents of the application, process of appeal to the National Information Commission, provision on limitation etc.

International Obligation

Article 19 of two important international Human Rights laws; Universal Declaration on Human Rights (UDHR), 1948 and International Covenant on Civil and Political Rights, (ICCPR), 1966 has ensured right to freedom of expression. 

Nepal is the UN member and has ratified and accepted many international documents including the UDHR. Nepal has also ratified ICCPR without any reservation. Articles of ICCPR, including Article 19 are binding to Nepal. ICCPR is the part of Nepalese legal system according to the Nepal Treaty Act, 1990. Section 9 of this Act has stated that the international laws ratified by Nepal shall come into force as the law of Nepal. Therefore, government of Nepal has the international obligation to guarantee Right to Information to its citizens.

Highlights of the Right to Information Act, 2007

Right to Information Act, 2007 is the result of the continuous effort and pressure of the civil society group of Nepal. This law has carried internationally recognized basic principles of right to information. Some of the positive aspects of the Act are as follows: 

Key features of the Act are: 
  • Proactive Disclosure: Principle of right to information stipulates that public agencies are required to disclose certain key information by themselves even in the absence of any request. Such requirement is termed as proactive disclosure. Section 5 of the RTI Act requires public agencies to update and publish different information by themselves on periodic basis.
  • Protection of whistleblower: Section 29 of the Act is another remarkable aspect of this Act which protects whistleblowers. According to that provision it is the duty of employee of public agencies to provide information on any ongoing or probable corruption or irregularities or any deed taken as offence under the prevailing laws. It protects the whistleblower whereby it mentions that no harm or punishment is done to bear any legal responsibility to the whistleblower for providing information. Furthermore, even if any punishment or harm is done to the whistleblower, the whistleblower may complaint, along with demand for compensation.
  • Scope of the Act extends to Political Parties and Non-governmental Organization: Another noteworthy aspect of this Act is that it covers political parties and non-governmental organizations in its section 2(a) within its scope and they are also responsible to provide the information like other public agencies.
  • National Information Commission: This Act has made a provision for the establishment of an independent National Information Commission for the protection, promotion and practice of right to information in its section 11. National Information Commission has been already established in accordance to this Act on June 14, 2008.
  • Timeframe and procedures for providing information: Section 7 of the Act has made detailed procedures to acquire the information from the concerned agencies. In addition, those agencies are required to provide information immediately and if they are not in the position to provide immediately then within 15 days of the application.
  • Compensation incase of harm or loss occurred as a result of not providing information: Section 33 says that if any person incur losses and damages due to not providing information, denying to provide information, providing partial or wrong information or due to destruction of information then such person are entitled to get compensation.

Implementation mechanisms

Promulgation of law alone is not adequate to protect the rights of citizens. No laws meet its objectives, until and unless it is backed by proper mechanisms to implement the laws. In the context of Right to Information, different mechanisms have been set up and some of the measures are necessary to be set-up. Some of those measures have been identified as: 
  • National Information Commission (NIC): NIC It is an independent organ established for the implementation of Right to Information in Nepal. The primary responsibility of the commission is to protect, promote and ensure the implementation of Right to Information in Nepal. Government of Nepal constituted the commission on June 14, 2008 comprising of one chief commissioner and two commissioners. 

    The Commission is empowered with power to hear and adjudicate case under the Right to Information Act. Likewise, it has the power to issue orders to the public agencies, to recommend and suggest the government and other public bodies in different issues relating to right to information. It can also impose fine and compensation, make necessary orders and can prescribe timeframe to the public bodies to provide information.

  • Public Information Officer: Right to Information Act, 2007 requires each and every public agency to appoint Public Information Officer for the purpose of disseminating information held in its agencies. They are appointed with the view of disseminating information to the concerned individuals. Public agencies may create Information Section also for the purpose of disseminating information as per necessity.

Present situation of implementation

Right to Information law came with huge expectations from various section of civil society. Civil society expressed high appreciation and expectation on the promulgation of those laws. Despite the separate Act on Right to information, current situation of implementation is not promising. Till now only dismal sections of Nepalese society have been able to exercise this right. Various studies and researches carried out by NGOs and experts working in this area shows that situation of implementation of this Act is not adequate. In addition, many national and international organizations are dissatisfied with the situation of implementation of this Act and there are debates on the efficacy of the law. National Information Commission has also accepted the fact that Right to Information Act, 2007 has not been properly implemented. Many institutions have rationalized the necessity of creating a favorable environment for its implementation. 

Similarly, since the drafting of Right to Information Act, 2007 there has been growing demands from civil society as well as government agencies for the proper implementation of this Act. 

Experts believe that one of the common and ongoing problems in Nepal is that laws and regulations are made but, are not implemented properly. The situation of Right to Information laws in Nepal is also facing the similar experience. 

Conventional practices relating to secrecy about government activities among civil servants; lack of trained and competent human resource in public agencies; failure of Act to establish monitoring mechanisms to oversee the implementation of the Act; lack of intellectual discourse; lack of awareness of the laws to the citizens; failure of civil society to take adequate initiatives and measures etc are identified as the major reasons for the lack of proper implementation of the Act. 

Right to Information can play a crucial role to change the conventional bureaucratic practices; transform Nepalese society towards transparency and accountability and; to establish a democratic society. In order to achieve it, Right to Information law needs to be implemented properly. Various stakeholders such as journalist, bureaucratic channels, government and individual information seeker needs to be educated and make aware to establish open and transparent society by utilizing Right to Information tool.