The Supreme Court has ordered the government to explain why it amended the Public Procurement Act, 2007 to prevent government agencies from publishing tender notices in newspapers and require them to publish them only on their websites.

A five-member constitutional bench led by Chief Justice Manoj Kumar Sharma and comprising Justices Binod Sharma, Saranga Subedi, Abdul Aziz Musalman and Mahesh Sharma Paudel issued the show-cause order.

The bench, however, declined to issue an interim order blocking the amended provisions, saying the issues raised in the petition should be decided during the final hearing.

The petition was filed by advocates Ananta Raj Luitel and Ram Prasad Pudasaini, who argued that the amendment imposing a prior restriction on publishing public notices and advertisements in newspapers was unconstitutional. They cited decisions by supreme courts in developed countries that had overturned similar restrictions.

Senior advocates Lalit Bahadur Basnet and petitioner Luitel argued that the restriction violated Article 19 of Nepal’s constitution, which guarantees freedom of communication and publication. They sought an interim order, arguing that the restriction could weaken the democratic system of government and undermine the media’s role as the fourth estate.

Advocates Kirti Nath Sharma Paudel, Pratibha Upreti, Bishal Thapa, Shakuntala Bhusal and Suryawati Pudasaini also argued on behalf of the petitioners.

The two advocates had initially filed a petition on May 26 challenging the Public Procurement Ordinance. Before the petition could be heard, Parliament passed the ordinance into law. The petitioners then filed a supplementary petition challenging the provisions in the new law. The supplementary petition was also presented before the constitutional bench on Wednesday along with the original petition.

Tender notices restricted to websites

The amendments to Sections 14(1), 30(1) and 40(1) of the Public Procurement Act, first introduced through an ordinance, prohibit government agencies from publishing tender notices in newspapers and require them to publish such notices only on their websites.

The ordinance was subsequently passed by Parliament and authenticated by the President on June 29.

The petitioners argue that the amendment amounts to an unconstitutional restriction on the media and threatens the financial viability of newspapers by cutting off government advertising.

The dispute comes after the Supreme Court had already struck down the government’s policy of directing all government advertising through a single channel.

On July 14, a separate bench of justices Saranga Subedi and Nripadhwaj Niraula struck down the government’s one-door advertising policy following a petition filed by Luintel on behalf of the Media Society Nepal.

Despite that ruling, the petitioners argue that the government has continued to restrict advertising in daily newspapers by relying on the amended Public Procurement Act.

They say the government has effectively maintained the restrictions on the media by using the amended law even after the Supreme Court ended the discriminatory advertising policy.

Government advertising restricted before amendment

The government had already begun restricting the placement of public notices and advertisements in the media even before the Public Procurement Ordinance was amended.

On April 1, the Office of the Prime Minister and Council of Ministers took a secretary-level decision directing government agencies to publish and broadcast their notices and advertisements only through state-owned media.

The decision instructed the federal, provincial and local governments, their agencies and all public bodies using public funds to publish or broadcast their information through the Gorkhapatra Corporation, Radio Nepal, Nepal Television and other government-owned media outlets.

The decision was then circulated to government agencies for implementation.