Understanding Torture Law in Nepal: Legal Protections and Challenges

Torture is a grave violation of human rights and dignity, and Nepal has taken steps to address this issue through legal reforms and international commitments. The Constitution of Nepal, 2015 explicitly prohibits torture under Article 22, declaring it a punishable offense with no statute of limitation. This constitutional guarantee has been reinforced by Nepal’s ratification of international treaties such as the Convention against Torture (CAT) in 1991, which obligates the country to prevent and punish acts of torture.

To fulfill these commitments, Nepal enacted the Torture and Cruel, Inhuman or Degrading Treatment (Control) Act, 2017. This law criminalizes acts of torture committed by public officials and provides for legal remedies, including compensation for victims. The Act defines torture broadly, encompassing physical and mental harm, and introduces mechanisms for investigation and punishment.

Despite the legal framework, implementation remains a challenge. Torture during detention and interrogation is still reported, and issues such as impunity, lack of independent oversight, and weak enforcement hinder justice for victims. Civil society organizations continue to advocate for stronger accountability and effective application of the law.

Overall, while Nepal has laid a legal foundation to combat torture, ensuring justice and prevention remains a work in progress.

This constitutional provision serves as a fundamental safeguard of human dignity and personal integrity. No person who is arrested or detained shall be subjected to physical or mental torture, or to cruel, inhuman, or degrading treatment as stated by constitution of Nepal 2072, Art 22. This clause ensures that even individuals who are under the custody of the state, such as those arrested, detained, or imprisoned, retain their basic human rights. The use of torture, whether to extract confessions, intimidate, or punish, is strictly prohibited. It aligns with Nepal’s obligations under international human rights instruments, particularly the Convention against Torture (CAT).

It reinforces this protection by making any act of torture or cruel treatment punishable by law. It also recognizes the right of victims to receive compensation. This means that the law not only penalizes the perpetrator but also acknowledges the harm done to the victim and seeks to provide redress. This provision places a constitutional duty on the state to legislate and enforce laws that ensure perpetrators of such abuse are held accountable and victims are provided justice. Together, these clauses promote the rule of law and safeguard the rights of all individuals, especially those in state custody.

Element of Torture in Nepal

1. Severe Physical or Mental Pain or Suffering

Torture involves the infliction of severe physical or mental pain and suffering. This can include extreme forms of violence such as beatings, electric shocks, burning, or other physical abuse. It also encompasses mental torture such as threats, humiliation, mock executions, or prolonged solitary confinement. The pain or suffering must be intense and not merely minor discomfort. The purpose is to deliberately harm a person's body or mind to the extent that it breaks their resistance or causes psychological trauma.

2. Intentional Act

For an act to be considered torture, it must be carried out intentionally. This means that the perpetrator must have a clear purpose and awareness of the harm being caused. Accidental or negligent acts do not meet this standard. The intention behind the act is crucial, torture is not simply about the suffering inflicted but also about the deliberate decision to cause such suffering.

3. Involvement of a Public Official

Another key element of torture is the involvement of a public official or someone acting in an official capacity. This includes police officers, military personnel, prison guards, or any state agent. Torture committed by private individuals does not qualify unless it is done with the consent or at the direction of a government official. This element emphasizes the abuse of power and responsibility by those who are entrusted with public authority.

4. Specific Purpose

Torture is not random violence; it is committed for specific purposes. These often include extracting a confession, punishing someone for an act they have committed or are suspected of committing, intimidating the victim or others, or discriminating against a person based on identity or belief. The presence of a clear motive behind the act helps differentiate torture from other forms of cruelty or abuse.

5. Exclusion of Lawful Sanctions

Finally, pain or suffering that arises solely from lawful sanctions, such as imprisonment or penalties given through a legal process, does not count as torture, unless it involves treatment that is cruel or degrading. This means that while lawful punishments may cause discomfort, they are not considered torture unless they cross the line into inhuman or degrading territory. This clause helps distinguish between legitimate state authority and abusive practices.

This legal provision strictly prohibits the use of physical or mental torture, as well as cruel, brutal, inhuman, or degrading treatment by any official authorized to investigate, prosecute, detain, or enforce laws. It clearly states that no authority or law enforcement officer is permitted to engage in or instigate such acts, whether directly or indirectly.

Provision Related to Torture in Nepal

Muluki Penal Code sec 167 provides about torture. Torture is defined here as the intentional infliction of physical or mental suffering on a person who is arrested, detained, or imprisoned. The purpose of such acts may include extracting information, forcing a confession, punishing an individual, intimidating or coercing the person or their associates, or performing any act contrary to law. These actions, when done deliberately and for such purposes, are legally recognized as torture or cruel treatment.

Anyone found guilty of committing torture under this provision can face up to five years of imprisonment, a fine of up to fifty thousand rupees, or both, depending on the severity of the offense. Moreover, individuals who order such acts or assist in their commission are subject to the same punishment as the primary offender.

Importantly, the law denies immunity to anyone who commits torture under the justification of following a superior’s order. Such a defense is not acceptable, and the offender cannot be excused from legal consequences on that basis. This provision reflects Nepal’s commitment to uphold human rights and ensure accountability, particularly in custodial and law enforcement settings.

In conclusion, torture remains one of the most serious violations of human rights, undermining human dignity and the rule of law. Nepal has made significant legal and constitutional strides to combat torture, particularly through Article 22 of the Constitution, the Torture and Cruel, Inhuman or Degrading Treatment (Control) Act, 2017, and provisions under the Muluki Penal Code. These laws clearly define torture, criminalize it, and establish punishment and compensation mechanisms. Despite this robust legal framework, enforcement remains a persistent challenge. Reports of custodial torture and lack of accountability continue to raise serious concerns. A culture of impunity, weak institutional oversight, and limited victim support systems hinder progress. To truly eliminate torture, Nepal must strengthen implementation, ensure independent investigations, and uphold justice for victims. Continuous efforts from the government, civil society, and the judiciary are essential to make torture prevention a reality and to protect the fundamental rights of every individual, especially those in state custody.