Nepal 2005 Supreme Court judgment
Condemnation of corporal punishment by parents and teachers – Supreme Court Order, Writ number 57 of the year 2061 (2005), Ale (CVICT) et al v Government
This Supreme Court decision followed an application made by the Center for Victims of Torture concerning the constitutionality of section 7 of the Children Act 1992, which provided for “minor beating” of children by family members and teachers.
The Court confirmed that the prohibition of torture and cruel, inhuman or degrading treatment in article 14 of the Constitution applies to all persons and is not limited to persons in conflict with the law. It also noted the international human rights treaties to which Nepal is a party, stating “it is not proper and lawful to make laws in a manner contrary to the provisions of those treaties”, and drew attention to countries which have prohibited physical punishment of children, adding “there seems no reason for Nepal not to take an initiative in the universal campaign against physical punishment or torture”.
The Court struck down the provision for “minor beating” and ordered Ministers to pursue measures to prevent physical punishment of children:
Based, inter alia, on the spirit of Articles 14(4) and 25(8) of the Constitution of the Kingdom of Nepal 2047(1990), treaty related legal obligations created by the commitments made by Nepal at the international sector, universal campaign against physical punishment or torture done to or inflicted on children, and obligation of the State to create environment for the overall development of the child, out of the provisions of the proviso to Section 7 of the Act relating to Children, 2048(1992), viz. “any act by the mother, father, family member, guardian or teacher to scold the child or give him/her minor beating for the sake of his or her interests shall not be deemed to violate this Section”, the portion “or give him/her minor beating”, is not appropriate and is contrary to the spirit of Articles 14(4) and 25(8) of the Constitution of the Kingdom of Nepal 2047(1990). So, that portion is hereby declared null and void with effect from this date, pursuant to Article 88(1) of the Constitution of the Kingdom of Nepal, 2047(1990). A directive order is also hereby issued to the Respondent Office of the Prime Minister and Council of Ministers, et al, hereby asking the Respondent to pursue appropriate and effective measures to prevent physical punishment as well as other cruel, inhuman or degrading treatment or punishment or abuse being imposed or inflicted on and likely to be imposed or inflicted on children….”
Subsequent law reform
In September 2018 Nepal enacted the Act relating to Children 2018 which prohibits all corporal punishment of children, and became the first South Asian state to achieve a full prohibition.