Petitioners call the move of the government to ban the popular app 'regressive' and 'draconian'
Kathmandu, August 26
The Supreme Court on Sunday ordered the government to provide reasons for banning the social media platform Telegram. A single bench, led by Justice Til Prasad Shrestha, issued a show-cause order in the name of the government.
Advocates Abhaya Raj Joshi, Monika Dhakhwa and Gyan Basnet made arguments on the petitioners' behalf on Sunday. They have argued that the government has taken such a move, curtailing the fundamental rights of citizens.
The Nepal Telecommunications Authority issued a directive banning Telegram on July 18. On August 21, advocates, including Dhakhwa, Basnet and Joshi, filed a writ petition challenging the NTA's decision.
Advocate Joshi told THT that the move of the government is not only 'regressive' but 'draconian'. He argued that the NTA might say that Telegram didn't register itself with the government, as the law makes it compulsory to do that.
"Can they ban Meta, Facebook or LinkedIn? They haven't been registered either. Telegram is a niche app with few users sending messages to others, but the ban creates an uncertain environment. No app would want to engage with the government for fear of being next, and Nepalis will miss out on all the benefits of new technology," he said.
The petitioners have sought a writ of mandamus, prohibition and other remedies to overturn the directive. They have also requested an order to halt the directive to ban Telegram. Furthermore, they have asked that the case be given priority. They contended that the notice/directive issued by the NTA violates constitutional provisions. They have argued that the directive should be overturned because it violates fundamental rights.
According to the petition, the directive also violates Section 43 of the Electronic TransactionsAct.
Talking to THT, advocate Joshi stated that at first glance, one might think - after all, it is just an app. "However, the issue raises a deeper question. Are fundamental rights based on the individual or the medium?" he questioned.
The constitution guarantees rights to citizens, not to any specific physical space or medium. A person's legal identity, thoughts, freedom of expression and organisational rights are all preserved in their digital presence.
Joshi, giving an example, added that if an individual has the right to assemble physically and express their views, then when that same person forms a group on a digital platform (such as Telegram) to express their views, it would not be logical for the state to strip that right away simply because it is exercised online or through a different medium.
"In both cases, the person exercising the right is the same, and their constitutional status remains unchanged. Whether it is a physical courtyard used for assembly or a digital platform used for gathering online, the medium may differ. Nonetheless, the essence and scope of the right do not change," he said. "According to legal principles, if the same kind of social, economic or political activity can take place through two different media, both must receive equal legal protection."
He stated that accessing educational resources via an online platform and visiting a physical library to read books both had the same goal of gaining knowledge and information.
Similarly, gathering at a tea shop to discuss an issue and engaging in discussion within a Telegram group serve the same purpose: exchanging ideas and organising. "Thus, restricting speech on the Telegram app today is equivalent to restricting speech in the real world," he argued.
