The Supreme Court has said that the imprisonment and hefty fines provisioned in the Electronic Transaction Act are not against the Constitution of Nepal.

Passing a verdict on a writ petition for scrapping Section 47 of the Act, the Constitutional Bench of the court said that freedom of opinion and expression, despite being fundamental, is not absolute. Hence, the state can impose lawful curbs.

Advocate Pratyush Nath Upreti had moved the court demanding a nullification of the section, arguing that it contradicted Article 17 of the constitution which guarantees freedom of opinion and expression.

However, the five-member bench led by then-chief justice Bishowambhar Prasad Shrestha refused to accept the argument, ruling that the constitution allows enforcement of laws to stop hate speech and maintain public decency.

“Article 17 (2) of the constitution guarantees right to opinion and expression but it is not absolute,” reads the verdict from last March, the full text of which was released on Tuesday.

“The constitution has imposed some restrictions on the exercise of rights. There is no obstacle to enacting a law within the boundaries set by the constitution.”

A restrictive provision in the Article says nothing shall be deemed to prevent legislations to place reasonable restrictions on any act which may undermine the sovereignty, territorial integrity, nationality and independence of Nepal or the harmonious relations between the federal units or the people of various castes, tribes, religions or communities or incite caste-based discrimination or untouchability or on any act of disrespect for labour, defamation, contempt of court, incitement to an offence or on any act which may be contrary to public decency or morality.

The five-member bench has concluded that the restrictive constitutional provision allows for laws to ensure the right is not misused.

The Act has a provision for punishment up to Rs100,000 and imprisonment not exceeding five years, or both, if a person publishes or displays any material in the electronic media such as computer that is prohibited for publication or display under the law. Similarly, it bars content contrary to public morality or decent behaviour or any material which may spread hate or jealousy against anyone or which may jeopardise the harmonious relations among the peoples of various castes, tribes and communities.

“Rights come with responsibilities. Every right is protected as long as it does not attack the liberty of others,” reads the ruling.

Currently, the government is using the same law to take action against those using social media or electronic media to “defame others” or publicise “indecent” content.

The full text of the verdict endorsing the fines and imprisonment spelt out in the Act comes at a time when the KP Sharma Oli administration is facing widespread criticism for registering the Social Media Bill in Parliament with provisions for hefty penalties.

If the bill is endorsed, social media platforms will have to post up to Rs10 million in fines if they don’t comply with government conditions while a user disseminating misleading information can face up to five years in jail and a fine of up to Rs1.5 million.

The bill is under consideration in the National Assembly. It lists out dozens of offences that can make users liable for hefty fines and imprisonment.

Those who transmit false or misleading information through fake identity are liable for the most severe penalty: five-year imprisonment and fines up to Rs1.5 million.

The government, however, has defended the bill, saying a new law was necessary to hold social media platform operators and users accountable, and there was no intent to curtail freedom of expression.