Comparative Study Of Torture Prohibition Under Nepalese Criminal Law And Compliance With Uncat Obligations

15 Oct 2025 --
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1. Introduction

Torture remains one of the most serious human rights concerns in Nepal, historically linked with the country's armed conflict (1996–2006), police brutality, and impunity in detention facilities.
Nepal is a State Party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) since 1991, which legally binds it to criminalize, investigate, and punish acts of torture.

Despite constitutional guarantees, Nepal’s domestic criminal law historically lacked specific provisions criminalizing torture until the Criminal Code Act, 2017 (2074 BS) came into effect.
This study compares Nepal’s laws and practice with its UNCAT obligations, highlighting judicial trends through major case law.

2. International Obligations: UNCAT Overview

Convention Against Torture (UNCAT) – adopted 1984, entered into force 1987.
Nepal ratified: 14 May 1991

Key Obligations under UNCAT:

Article 1: Defines “torture” as intentional infliction of severe pain or suffering by or with consent of a public official.

Article 2: Requires States to criminalize torture domestically.

Article 4: States must make torture punishable by appropriate penalties.

Article 12–13: Requires prompt and impartial investigation and access to complaint mechanisms.

Article 14: Provides a right to redress and compensation to victims.

3. Nepal’s Domestic Legal Framework

A. The Constitution of Nepal (2015)

Article 22(1): Right against torture — “No person shall be subjected to physical or mental torture, or cruel, inhuman or degrading treatment.”

Article 22(2): Declares torture as non-derogable — no justification allowed under any circumstances.

Article 22(3): Provides victims a right to compensation.

This constitutional protection is stronger than before, aligning closely with Articles 2 and 14 of UNCAT.

B. Criminal (Code) Act, 2017 (2074 BS) – Muluki Ain’s Modern Successor

Sections 167–169:
For the first time, the Code explicitly criminalized torture.

Section 167(1): Defines torture as intentional infliction of physical or mental pain during investigation, interrogation, or detention.

Section 167(2): Prohibits such acts by public officials or those acting in official capacity.

Section 167(3): Punishment up to five years imprisonment and a fine up to Rs. 50,000.

Section 168: Provides for compensation to victims.

Section 169: Obliges government to prosecute offenders.

This law fulfills Nepal’s obligation under Article 4 (criminalization) of UNCAT, although the penalty is often criticized as too lenient.

C. Constitutional Remedies and Other Mechanisms

Compensation Relating to Torture Act (CRT) 1996 (2053 BS): Provided civil compensation (Rs. 10,000 max) but did not criminalize torture.

Human Rights Commission Act (2012): Empowered NHRC to investigate torture allegations.

Judicial Remedies: Victims may file writ petitions under Article 133 (Supreme Court) or Article 144 (High Courts).

4. Comparative Analysis: Nepalese Law vs UNCAT Obligations

UNCAT Provision	Nepal’s Compliance (Law)	Gaps/Issues
Article 1: Definition of Torture	Section 167(1) Criminal Code defines torture	Definition excludes “pain inflicted for discrimination” or by non-state actors
Article 2: Criminalization	Criminal Code criminalizes torture	Limited scope (only officials in custody)
Article 4: Punishment	Imprisonment up to 5 years	Inadequate penalty; not proportionate to gravity
Article 12–13: Investigation & Complaint	NHRC and courts can order investigation	Lack of independent investigative body
Article 14: Compensation & Rehabilitation	Provided under Constitution & Section 168	No long-term rehabilitation mechanism
Article 15–16: Non-derogation & Training	Constitution guarantees absolute ban	Implementation and police training inadequate

5. Landmark Case Laws on Torture in Nepal

Below are six significant judicial decisions that shaped Nepal’s approach to torture prohibition and UNCAT compliance.

Case 1: Prakash Mani Sharma v. Government of Nepal (NKP 2057, Vol. 9, Decision No. 7575)

Facts:
Advocate Prakash Mani Sharma (Forum for Protection of Public Interest) filed a PIL challenging the government’s failure to criminalize torture and to comply with Nepal’s UNCAT obligations.

Issue:
Whether Nepal’s failure to make torture a punishable crime violated its constitutional and international obligations.

Judgment:
The Supreme Court held that:

Torture is absolutely prohibited under customary international law and UNCAT.

The Compensation Relating to Torture Act, 1996 was insufficient since it only provided compensation, not criminal punishment.

The government was directed to draft a new law criminalizing torture.

Significance:
This case laid the foundation for criminalization, influencing the inclusion of Sections 167–169 in the Criminal Code 2017.

Case 2: Gyanendra Tripathi v. Government of Nepal (NKP 2064, Vol. 4)

Facts:
The petitioner, a detainee, alleged severe torture during police interrogation.
He demanded medical examination and prosecution of police officers.

Issue:
Does the state have a duty to investigate and prosecute officials accused of torture?

Decision:
The Supreme Court affirmed that the State has a positive obligation to investigate allegations of torture promptly and impartially under both the Constitution and UNCAT (Articles 12–13).

Significance:
This case reaffirmed Nepal’s duty of effective investigation, emphasizing that torture complaints cannot be ignored or dismissed.

Case 3: Advocate Krishna Prasad Bhattarai v. Ministry of Home Affairs (NKP 2067, Vol. 8)

Facts:
A lawyer filed a petition demanding the creation of an independent mechanism to investigate torture, citing routine police abuse during detention.

Judgment:
The Supreme Court ordered the government to:

Establish an independent investigation unit separate from police.

Ensure medical documentation and judicial oversight of detainees.

Significance:
Advanced the concept of institutional reform, consistent with UNCAT Article 12 (prompt, impartial investigation).

Case 4: Rajendra Dhakal & Others v. Government of Nepal (Supreme Court, 2063 BS)

Facts:
Petitioners (families of victims of enforced disappearances during the armed conflict) argued that detainees were tortured and killed by security forces, and that no effective investigation had taken place.

Issue:
Whether failure to investigate disappearances and torture violates the right to justice.

Judgment:
The Supreme Court ruled that:

Nepal must enact laws criminalizing enforced disappearance and torture.

The government must investigate and prosecute perpetrators.

Victims have the right to truth, justice, and reparation.

Significance:
Landmark for conflict-era justice; influenced the Enforced Disappearance Enquiry, Truth and Reconciliation Commission Act (2014).

Case 5: Rajendra Prasad Dhungel v. Government of Nepal (NKP 2067)

Facts:
The petitioner, a lawyer, alleged police tortured his client while in detention; he sought criminal accountability.

Judgment:
The Supreme Court condemned the culture of impunity and reiterated that:

Article 22 of the Constitution provides absolute prohibition.

Nepal must fully incorporate UNCAT standards, including criminal prosecution and protection for complainants.

Significance:
Confirmed that compensation alone is insufficient; punishment is mandatory.

Case 6: Rina Thapa v. Government of Nepal (Supreme Court, 2075 BS)

Facts:
Rina Thapa, an accused in a theft case, alleged severe physical and psychological torture in police custody.
She filed a petition under Article 133 seeking justice.

Judgment:
The Court invoked Sections 167–169 of the Criminal Code (2017) and ordered:

Criminal prosecution of responsible officers.

Compensation and psychological rehabilitation for Thapa.

Mandatory recording of interrogations and medical checks for detainees.

Significance:
This was among the first cases applying the new Criminal Code provisions, showing improved compliance with UNCAT.

Case 7 (Additional): NHRC v. Government of Nepal (2072 BS)

Facts:
The National Human Rights Commission recommended criminal action against several police officers for custodial torture leading to death, but the government failed to act.

Decision:
The Supreme Court ruled that the NHRC’s recommendations are binding, reinforcing that impunity violates UNCAT Article 12.

Significance:
Strengthened the enforceability of human rights mechanisms and accountability obligations.

6. Major Observations from Case Law

Judicial Activism:
The Supreme Court has consistently upheld the absolute prohibition of torture and pressured the government to align with international norms.

Shift from Compensation to Criminalization:
Early cases (1990s–2000s) emphasized compensation; recent cases focus on criminal prosecution and rehabilitation.

Implementation Gap:
Despite progressive judgments, enforcement remains weak; very few police officers have been criminally convicted.

Alignment with UNCAT:
Legal provisions now exist, but institutional independence and strong penalties are still lacking.

7. Conclusion

Nepal’s journey toward UNCAT compliance has evolved significantly:

From civil compensation under CRT Act (1996) →

To criminalization in Criminal Code (2017) →

And judicial enforcement in post-2017 cases.

However, full compliance requires:

Establishing independent torture investigation units;

Ensuring effective prosecution;

Providing rehabilitation and reparations;

Amending the law to expand the definition of torture and increase penalties.

Nepal’s judiciary has played a transformative role, but legislative and executive branches must still fulfill their international and constitutional obligations to eliminate torture and ensure accountability.