The National Penal Code that came into force in 2018 has criminalised torture and includes a provision of up to five years of imprisonment for the perpetrators in addition to compensation for the victims.

Nepal in 1996 adopted the Compensation Relating to Torture Act following pressure to fulfil its international commitment. As the government is a party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1991, having a domestic law was necessary. The convention treats all acts of torture as criminal offence and envisions punishment for the perpetrators and compensation for the victims.

Article 14 of the convention says each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation, it says.

However, the 1996 Act didn’t reflect the spirit of the convention as it was limited to providing compensation up to Rs 100,000 to the victims with the provision of some departmental actions against the government employees involved in torture but it lacked the provisions of prosecution.

The issue was addressed in the National Penal Code-2017, which came into force in August 2018.

Section 167 (1) of the code says no authority who is competent under the law in force to investigate or prosecute any offence, implement law, take any one into control, or hold any one in custody or detention in accordance with law shall subject, or cause to be subjected, any one to physical or mental torture or to cruel, brutal, inhuman or degrading treatment.

A person who commits the offence referred to in subsection as per the section is liable to a sentence of imprisonment for a term not exceeding five years or a fine not exceeding fifty thousand rupees or both the sentences, according to the penal code.

Despite such a provision in place, not a single perpetrator of torture has been convicted over the past three years although cases of torture are reported in significant numbers every year, according to organisations working on human rights.

Over a dozen cases of custodial deaths and several cases of torture have been reported in the past three years since the enforcement of the National Penal Code. The death of Bijay Ram Mahara from Garuda in Rautahat in August 2020, Raj Kumar Chepang in July 2020 in Chitwan and Shambhu Sada Musahar in Janakpur in June last year are some of the cases where there have been no prosecution. Although the police reluctantly received complaints from the victims’ families, there have not been any investigations. “Firstly, it is extremely difficult to file a police complaint of custodial death due to torture because police themselves are involved in the torture so they are reluctant to register the complaint,” Bikash Basnet, a programme manager at the Advocacy Forum, a non-governmental organisation advocating for human rights in Nepal, told the Post. “Even if a complaint is registered with the police, prosecution doesn’t happen.”

The police are reluctant to book their officials even in the cases which have been termed as “extrajudicial killings” by the National Human Rights Commission. In October last year, the constitutional human rights watchdog had concluded that the police extrajudicially killed Gopal Tamang, 23, of Sindhupalchok and Ajay Tamang, 24, from Nuwakot in a forest in Bhaktapur. The commission had recommended action against the police officials including a deputy superintendent of police who had shot the two alleged kidnappers dead after their arrest in August 2018.

The commission’s investigation also found that police had killed Kumar Paudel, Sarlahi district in-charge of the Netra Bikram Chand-led Communist Party of Nepal, after his arrest in June, 2019. The commission termed it extrajudicial killing and recommended actions against the perpetrators including a police inspector. The police didn’t adhere to the recommendations. “Cases of torture and extrajudicial killings are continuing because there is no action against the perpetrators,” Govinda Sharma Poudyal, a former member of the National Human Rights Commission, told the Post.

Following the police reluctance in investigating the cases of torture, custodial deaths and extrajudicial killings, the Supreme Court in January 2020 (full text was issued in December) directed the government to constitute a separate entity, independent of Nepal Police, to investigate the cases where the police officials are involved. The ruling by the division bench of justices Ishwar Prasad Khatiwada and Kumar Regmi said a separate mechanism comprising experts from different sectors is necessary as the police cannot be trusted to conduct impartial investigation into cases where its own officers are involved.

“The government must form an independent agency with specially trained experts to investigate allegations of a serious and violent nature,” read the verdict. “It must establish a legal and institutional framework to facilitate investigations that are independent, impartial and effective.”

However, instead of abiding by the court order, the government has moved the Supreme Court demanding a review of the verdict. But hearing in the case has yet to begin.

“Formation of a separate mechanism would have been instrumental in providing justice to the victims of torture, custodial deaths and extrajudicial killings,” said advocate Sunil Ranjan Singh, who had moved the court demanding such a mechanism. “The government, however, is looking for ways not to implement it.”

According to the Advocacy Forum, non-implementation of court orders too are barriers to providing justice to torture victims. In the last two decades, the Forum facilitated 152 victims of torture claiming compensation. Out of them the court ordered compensation in 46 cases. “However, only 7 (15.22 percent) of them actually received the monetary compensation,” reads the report by the forum issued on the occasion of International Day Against Torture on Saturday.