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Author: Editor NLC

The Right to Employment Act, 2075 (2018)

Date of authentication:

2075/6/2 (18 September 2018)

 

Act Number 17 of the year 2075 (2018)

An Act Made to Provide for the Right to Employment

Preamble:

Whereas, it is expedient to make necessary provisions in order to ensure the right of every citizen to employment, provide every citizen with an opportunity to choose employment according to his or her capacity, and in relation to the terms and conditions of employment and unemployment support;

Now, therefore, be it enacted by the Federal Parliament.

Chapter-1 Preliminary

  1. Short title and commencement: (1) This Act may be cited as the “Right to Employment Act, 2075 (2018).”

(2) It shall commence immediately.

  1. Definitions: Unless the subject or the context otherwise requires, in this Act,-

(a)       “Prescribed” or “as prescribed” means prescribed or as prescribed in the Rules framed under this Act,

(b)        “Livelihood allowance” means the livelihood allowance referred to in Section 22.

(c)        “Minimum employment” means such a minimum period of employment that is at least one hundred days as to be provided in one fiscal year pursuant to this Act.

(d)       “Family” means husband, wife, son, daughter, adopted son, adopted daughter, father, mother or step-mother jointly living in an undivided family, and this term also includes grandfather and grandmother whom he or she has to maintain on his or her own.

(e)        “Unemployed person” means a citizen of the age group from eighteen years to fifty-nine years who is not involved in employment for at least one hundred days in one fiscal year or who is not involved in self-employment generating such minimum income as prescribed.

(f)        “Unemployment support” means the support program referred to in Section 20 to be provided to the unemployed person.

(g)        “Ministry” means the Ministry of the Government of Nepal that looks after the matters relating to labor, employment and social security.

(h)        “Self-employment” means an act of producing any good or service by mobilizing one’s labor, skills, knowledge, resources, means and capital, trade in such good and service or carrying on any industry or trade and business or any such entrepreneurship or income generation.

(i)         “Employer” means any such office and body of the Government of Nepal, Provincial Government, Local Level and subordinate office thereunder, and public corporation and body corporate, industry, institute and employment-oriented institution in operation pursuant to law as may be providing employment to the unemployed pursuant to this Act, and this term also includes a person providing opportunity for private employment.

(j)         “Employment Service Center” means the Employment Service Center established pursuant to Section 10, in order to collect data of the unemployed person, identify employment opportunities and disseminate information, provide information on the availability of laborers to the employer and provide other services relating to employment,

(k)        “Committee” means the Steering Committee as referred to in Section 17.

(l)         “Local Level” means a Rural Municipality or Municipality.

Chapter-2 Right to employment

  1. Right to employment: (1) Every citizen shall have the right to employment.

(2) For the purposes of sub-section (1), every citizen shall have the right to practice appropriate labor subject to this Act or the prevailing law.

  1. Right to choose employment: (1) Every citizen shall have the right to choose employment according to his or her wish.

                        (2) Every citizen shall have the right to voluntarily engage in employment according to the qualification and capacity and leave or change such employment, subject to this Act and the prevailing law.

(3) No person shall engage or employ any citizen in employment against his or her will or in employment that he or she does not choose or force or compel him or her to engage in such employment.

  1. Right to get unemployment support: Every citizen shall have the right to get unemployment support pursuant to this Act.
  2. Not to make discrimination: Except for a special provision made by the prevailing law for any particular class or community with respect to the provision of employment to the unemployed, no person shall make discrimination on the ground of one’s origin, religion, color, caste, ethnicity, sex, language, region, ideology or similar other ground.
  3. Not to remove from employment: (1) Except as in accordance with the prevailing law, no person engaged in employment shall be removed from the employment without any reason.

(2) If a person engaged in employed is removed from the employment except as in accordance with the law relating to the terms and conditions of service that is applicable to such a person, the person who is so removed may make an application, accompanied by the reason, to the concerned Employment Service Center for the continuation of his or her engagement in the employment.

(3) If an application is received pursuant to sub-section (2), the Employment Service Center shall send the application to the concerned Local Level for making necessary inquiry to the reason why the person engaged in employment has been removed from the employment.

(4) If, upon making necessary inquiry into the application sent pursuant to sub-section (3), it appears that such person has been removed for no reason, the concerned Local Level may give direction to the employer to continue his or her engagement in the work.

  1. To conduct employment program: (1) The Government of Nepal, Provincial Government and Local Level shall, after the commencement of this Act, conduct necessary employment programs to provide the unemployed persons with minimum employment.

(2) While conducting programs pursuant to sub-section (1), priority shall be given to the women, Dalits, economically destitute, martyr’s families and families of the persons enforced to disappear.

(3) Other matters relating to conducting the programs pursuant to sub-section (1) shall be as prescribed.

  1. Authority to make decision: If a question is raised as to whether any person is employed or not, the concerned Local Level shall make decision of that matter on such basis as prescribed.

Chapter-3 Employment Service Center

  1. Employment Service Center: (1) The Government of Nepal shall, by a notification in the Nepal Gazette, establish an Employment Service Center in each Local Level, which shall act under the Local Level.

                        (2) The Ministry shall have the responsibility to give directive to, coordinate with and facilitate the functioning of the Employment Service Center, from the Federal level.

(3) Other matters relating to the operation of the Employment Service Center referred to in sub-section (1) shall be as prescribed.

  1. Application to be made: (1) An unemployed person who wants to be involved in the minimum employment pursuant to this Act may make an application, setting out his or her details and the skills, qualification or capacity that he or she has, to the concerned Employment Service Center in such a format and within such period as prescribed.

                        (2) Upon making necessary inquiry into the application received pursuant to sub-section (1), the Employment Service Center shall keep updated records by preparing the list of the persons who are actually unemployed.

(3) The Employment Service Center shall provide the updated records referred to in sub-section (2) to the Government of Nepal and concerned Provincial Government, as prescribed.

  1. To provide information: (1) If any person who has made an application to the Employment Service Center pursuant to Section 11 is involved in employment elsewhere through personal effort before being recommended for employment pursuant to Section 16 or is involved in self-employment or is no longer willing to participate in the employment or receive the unemployment support to be provided pursuant to this Act, he or she shall provide information thereof to the Employment Service Center as soon as possible.

                        (2) If any person provides information pursuant to sub-section (1), the Employment Service Center shall remove such a person’s name from the records of the list of the unemployed person.

  1. To keep details of employers: (1) The Employment Service Center shall update and maintain the list of the employers within its territory.

                        (2) For the purpose of updating the list pursuant to sub-section (1), the Employment Service Center may write to any governmental or non-governmental body or organization and institution, in addition to the Local Level, to provide such details as demanded to the employers within the concerned Local Level.

(3) If it is so written by the Employment Service Center pursuant to sub-section (2), all the bodies concerned shall provide the details of the employers under them or of the works being performed by them and the human resources needed for such works to the Employment Service Center.

(4) The Employment Service Center shall send the details of the employers referred to in this Section to the Ministry and the Provincial Government concerned.

(5) Other matters relating to the collection and updating of the details of the employers shall be as prescribed.

  1. To make demand for laborers: (1) An employer shall give a notice, setting out the number of such laborers, their qualification and the period, as needed for the employer for any work, to the Employment Service Center.

                        (2) An employer may demand through the Employment Service Center for such laborers as needed for the employer for any work at the local level.

(3) While making a demand for laborers pursuant to sub-sections (1) and (2), the employer shall write to the Employment Service Center, setting out the number of laborers, their qualification, capacity, skills and the nature of work, in such a format as prescribed.

  1. To provide employment information: The Employment Service Center shall provide information, relating to the availability of laborers required for the employers, and employment opportunity for the listed unemployed person, within its jurisdiction.
  2. To provide employment to the unemployed person : (1) After any employer has made a demand for laborers pursuant to Section 14, the Employment Service Center shall send the unemployed person listed pursuant to sub-section (1) of Section 11, on the basis of his or her qualification, skills and experience, to the concerned employer for employment.

                        (2) The employer of governmental or public sector shall employ the person sent for employment pursuant to sub-section (1) in the work suitable to his or her qualification and skills pursuant to the prevailing law, and the employer of private sector may employ him or her in the available work suitable to his or her qualification and skills. Such a person shall perform the work assigned by the employer.

(3) The rate of daily wages to be provided by the employer for employing him or her in the work pursuant to sub-section (2) shall be as prescribed by the Ministry.

(4) The Employment Service Center shall remove the person who fails to perform the work assigned by the employer pursuant to sub-section (2) from the list of the unemployed persons.

Schedule Classification of Disabilities

 

(Related to sub-section (1) of Section 3)

Classification of Disabilities

(a)        Persons with disabilities according to the problem and difficulty in any organ or system of the body:

  1. Physical disability: Problem that arises in operation of physical parts, use and movement in a person due to problems in nerves, muscles and composition and operation activities of bones and joints (for example, disability that arises due to polio, lack of a physical organ, effect of leprosy, muscular dystrophy, permanent problem associated with joints and backbone, reversal of clubfeet, problem associated with rickets bones), and a person whose height is excessively lower than the average height that a person having attained sixteen years of age has according to the age.
  2. Disability related to vision: the condition where there is no knowledge about an object’s figure, shape, form and colour in an individual due to the following problem with vision:

(a)        Blindness: A person who cannot distinguish fingers of hand by both eyes from a ten feet distance or who cannot read the letters on the fourth row of the Snellen chart (3/60), even upon utilization of medicines, operation, lenses or lens.

(b)        Low vision: A person who cannot distinguish fingers of hand by both eyes from a twenty feet distance or who cannot read the letters on the fourth row of the Snellen chart (6/18), even upon utilization of medicines, operation, lenses or lens.

(c)        Total absence of sight: A person who cannot differentiate brightness or darkness.

  1. Disability related to hearing: Problems arising in an individual who cannot discriminate composition of the parts of hearing and voice, rise and fall of position, and level and quality of voice,

(a)        Deaf: A person who cannot hear voice above eighty decibels or who needs sign language for communication.

(b)        Hard of hearing: A person who needs a hearing device to hear or who can hear voice from sixty-five to eighty decibels.

  1. Deaf-Blind: A person who is without both hearing and vision or who has joint interaction of disabilities in two organs.
  2. Disability related to voice and speech: Difficulty produced in parts related to voice and speech and difficulty in rise and fall of voice to speak, unclear speech, repetition of words and letters.
  3. Mental or psycho-social disability: The inability to behave in accordance with age and situation and delay in intellectual learning due to problems in performing intellectual activities like problems arising in the brain and mental parts and awareness, orientation, alertness, memory, language, and calculation.
  4. Intellectual disability: A person who is in a condition that results in the problem in doing activity relative to the age or environment due to lack of intellectual development resulting from the lack of development of intellectual awareness along with the increase in age (for example, Dounce syndrome).
  5. Disability associated with haemophilia: A person who has such physical condition that there arises problem in the clotting of blood due to deflection in factors in blood because of genetic effect.
  6. Disability associated with autism: A person who has problem in the development of veins or tissues and functionality thereof (for example, a person wo has difficulty to communicate, to understand and apply general social rules, and who does not show normal behaviour along with the age, who shows abnormal reaction, repeats the same activity, does not assimilate with others or makes reaction instantly).
  7. Multiple disability: A person who has a problem of two or more than two types of disability mentioned above (for example, cerebral palsy).

(b)       Classification of disabilities on the basis of severity of disability:

(1)        Profound disability: A person who is in such a condition that he or she has difficulty with performing his or her day-to-day activities even with continuous support of others.

(2)       Severe disability: A person who is in such a condition that he or she needs support of others continuously to perform personal activities and involve in social activities.

(3)        Moderate (mid-level) disability: A person who is in such a condition that he or she can regularly participate in his or her daily activities and in social activities if physical facility is available, environmental barrier is ended or education or training provided.

(3)        Mild disability: A person who is in such a condition that he or she can regularly participate in his or her daily activities and social activities if there exists no physical and environmental barrier.

 

Explanation:

  1. “Composition and functions of organs of the body” means organs and functions associated with the operation of the body, vision, speech and hearing, mental, muscular and nerve system and other systems.
  2. “Participation in the functions of daily life and social life” means a person’s learning, daily functions, communication, mobility, self-care, domestic life interaction, inclusive education, employment, community and functions and participation in community as well as civic life.
  3. “Barriers created from the existing social and physical environment” means barriers created from psycho-social, technologies, nature and man-made environment, attitude related, service systems and policies.
  4. For participation, facility and representation as well, in the case of a person with intellectual disability and with total disability, his or her father, mother or a person directly involved in his or her maintenance shall be considered the family member or concerned person.

 

Chapter-4 Steering Committee

  1. Steering Committee: (1) There shall be a Steering Committee as follows, in order to operate, look after and steer the functions related to the protection of the rights to employment of the citizen:

   (a)       Minister/State Minister, Ministry of Labor,

Employment and Social Security                             -Chairperson

  (b)       Member, National Planning Commission

(who looks after the matters concerned)                  -Member

 (c)       Secretary, Ministry of Labor, Employment

and Social Security                                                    -Member

(d)       Secretary, Ministry of Finance                     -Member

(e)       Secretary, Office of the Prime Minister and

Council of Ministers (who looks after the

matter concerned)                                                      -Member

(f)        Secretary, Ministry of Industries, Commerce

and Supplies                                                               -Member

(g)       Secretary, Ministry of Physical Infrastructure

and Transport                                                              -Member

(h)       Joint-secretary, Ministry (who looks after

 the Prime Minister Employment Program)   -Member-Secretary

(2) There shall be steering committees in the Province and Local Level, as prescribed.

(3) The secretariat of the Committee referred to in sub-section (1) shall be situated in the Ministry.

  1. Meeting of the Committee: (1) The meeting of the Committee shall be convened at such date, time and venue as fixed by the Chairperson.

                        (2) Two persons, including at least one woman representing employers and laborers, shall be invited to the meeting of the Committee.

(3) The decisions of the Committee shall be certified and kept by the Member-Secretary.

(4) The procedures relating to the meeting of the Committee shall be as determined by the Committee itself.

(5) Other matters relating to the meeting of the Committee and implementation of the decisions shall be as prescribed.

  1. Functions, duties and powers of the Committee: The functions, duties and powers of the Committee shall be as follows:

(a)       To make analysis and projection of the demand of the labor market and the availability of existing human resources,

(b)       To make recommendation to the Government of Nepal about policies required to make provisions for employment or self-employment for the unemployed person,

(c)        To guide the Provincial Government and Local Level in the preparation of updated records of the unemployed person,

(d)       To prepare policies and programs relating to unemployment support to be provided to the unemployed person on behalf of the State,

(e)        To make policy-wise recommendation to the Government of Nepal in relation to livelihood allowance to be provided to the unemployed person,

(f)        To make coordination between the Government of Nepal, Provincial Government and Local Level in the operation of the employment program,

(g)        To evaluate the implementation of the Unemployment Support Program.

Chapter-5 Relating to Unemployment Support

  1. Unemployment Support Programs: (1) For the unemployment support, the Government of Nepal, Provincial Government and Local Level shall conduct the following programs:

(a)       Providing information relating to employment opportunities,

(b)       Providing employment-oriented and skill-oriented trainings,

(c)       Providing soft loan for self-employment through banks and financial institutions,

(d)       Creating self-employment,

(e)       Conducting other programs as prescribed.

(2)        Other provisions relating to the unemployment support programs referred to in sub-section (1) shall be as prescribed.

  1. Required to do work: (1) A person who has received training under the unemployment support program pursuant to this Act shall do the work as prescribed, upon going to such place or field as assigned by the Employment Service Center.

                        (2) A person who does not go to or refuses to perform the work in the field where he or she has been assigned to pursuant to sub-section (1) shall be removed from the list of unemployed persons, and shall not be provided with the livelihood allowance referred to in Section 22.

  1. To provide livelihood allowance: (1) If the Government of Nepal cannot provide the unemployed person listed in the Employment Service Center with minimum employment, it shall, subject to the conditions prescribed, the livelihood allowance in a sum of fifty percent of the amount equal to such minimum wages of one hundred days as fixed by the Ministry in one fiscal year.

                        (2) Notwithstanding anything contained in sub-section (1), if any unemployed person gets employment only for the period less than one hundred days in one fiscal year, only the amount equal to fifty percent of the minimum wages fixed by the Ministry for the remaining period of one hundred days shall be provided as the livelihood allowance.

(3) The unemployed person who receives the livelihood allowance pursuant to sub-section (1) shall abide by the conditions as prescribed.

(4) The livelihood allowance referred to in this Section shall be provided only in the following conditions:

(a)       If any member of the family cannot get employment as prescribed,

(b)        To the families having annual income less than that fixed by the Government of Nepal,

(c)        If no member of the family is self-employed,

(d)       If no member of the family has gone to foreign employment.

Explanation “Foreign employment” means the condition where one has gone to work in a foreign country upon obtaining work permit from the Government of Nepal.

(5) Notwithstanding anything contained in sub-section (4), the livelihood allowance shall not be provided to the family of a person who is getting pension or retirement facility from a government fund or other country or international or inter-governmental institution, organization or any other body or who is regularly receiving any kind of support from the social security fund or other support related fund of the Government of Nepal or from the employer.

Explanation For the purposes of this Section, “government fund” means any of the following funds:

(a)       The consolidated fund or other government fund of the Government of Nepal, Provincial Government or Local Level,

(b)       The fund of a local corporation, board, authority, enterprise or similar body which is fully or partly owned by the Government of Nepal, Provincial Government or Local Level,

(c)        A fund operated with the grant received from the Government of Nepal, Provincial Government or Local Level,

(d)       A fund established under the prevailing law to provide the person who has held a public office with pension,

(6) Other matters relating to the livelihood allowance to be provided pursuant to this Section shall be as prescribed.

  1. Provisions relating to budget: The provisions of the budget required for the programs to be operated pursuant to this Act shall be made from the annual budget appropriation of the Government of Nepal, Provincial Government and Local Level.

Chapter-6 Offence and Punishment

  1. Complaint: (1) Any person who knows that an offence has been committed or is about to be committed under this Act may make a complaint to the Labor and Employment Office concerned within thirty-five days.

(2) Other provisions relating to the complaint shall be as prescribed.

  1. Act deemed to be offence: If any person does any of the following acts, he or she shall be deemed to have committed the offence under this Act:

 (a)        Any act done contrary to sub-section (3) of Section 4,

(b)        Discrimination made by the employer contrary to Section 6, except in accordance with the prevailing law,

(c)        Removal by the employer from employment contrary to Section 7,

(d)       Submission of false description to obtain the unemployment support or livelihood allowance referred to in this Act,

(e)        Utilization of the unemployment support for any purpose other than the purpose for which the unemployment support has been received.

  1. Punishment: (1) If any person commits the following offence, the Labor and Employment Office shall punish such a person or institution with the following punishment, according to the degree of offence:

(a)        A fine of twenty-five thousand rupees in the case of the commission of the offence referred to in clause (a) of Section 25,

(b)        A fine of ten thousand rupees in the case of the commission of the offence referred to in clauses (b) and (c) of Section 25,

(c)        A fine in a sum that is equal to the unemployment support or livelihood allowance, if any received, upon recovering that amount, in the case of the commission of the offence referred to in clause (d) of Section 25,

(d)       A fine in a sum that is equal to the amount received as the unemployment support, upon recovering that amount, in the case of the commission of the offence referred to in clause (e) of Section 25.

(2) The Labor and Employment Office concerned shall write to the concerned Local Level to prevent the service, facility to be provided by it from being provided to the person or institution that fails to pay the fine imposed pursuant to sub-section (1) within the prescribed period.

(3) The fine referred to in sub-section (1) shall be recovered as a government arrear from the person or institution concerned.

(4) Notwithstanding anything contained elsewhere in this Section, if an act under this Act is also deemed to be an offence under the other prevailing law, no provision of this Section shall prevent from instituting a separate case on such an offence and imposing punishment pursuant to such other law, and if any person is liable under the prevailing law to punishment that is more than that set forth in this Section for any act done contrary to this Act, such a person shall accordingly be liable to that punishment.

  1. Appeal: (1) A party who is not satisfied with a decision made by the Labor and Employment Office pursuant to this Act may make an appeal to the Labor Court within thrifty-five days from the date of the decision made.

                        (2) The decision made by the Labor Court pursuant to sub-section (1) shall be final.

Chapter-7 Miscellaneous

  1. To form sub-committee or task force: (1) The Committee may form a sub-committee or task force, as necessary, in order to implement this Act.

                        (2) The terms of reference of the sub-committee or task force formed pursuant to sub-section (1) shall be as specified by the Committee.

  1. Monitoring and supervision: The Ministry, Province and Local Level shall regularly carry out monitoring and supervision of the programs to be conducted pursuant to this Act.
  2. Annual report: (1) The Ministry shall prepare and submit the annual report of the activities performed within every fiscal year to the Office of the Prime Minister and Council of Ministers, within three months of the completion of the fiscal year.

(2) The Office of the Prime Minister and Council of Ministers shall publish the report submitted pursuant to sub-section (1).

  1. Power to frame Rules: The Government of Nepal may frame necessary Rules in order to implement this Act.
  2. To make directives and procedures: The Ministry may, subject to this Act or the Rules framed under this Act, make and implement directives and procedures, as required.

The Public Health Service Act, 2075 (2018)

Date of Authentication

2075/6/2 (18 September 2018)

Act Number 11 of the year 2075 (2018)

An Act Made to Provide for Public Health Service

Preamble:

Whereas, it is expedient to make necessary legal provisions for implementing the right to get free basic health service and emergency health service guaranteed by the Constitution of Nepal and establishing access of the citizens to health service by making it regular, effective, qualitative and easily available,

Now, therefore, be it enacted by the Federal Parliament.

Chapter-1 Preliminary

  1. Short title and commencement: (1) This Act may be cited as the “Public Health Service Act, 2075 (2018).”

(2) This Act shall come into force immediately.

  1. Definitions: Unless the subject or the context otherwise requires, in this Act-

(a)        “Emergency health service” means the initial and immediate service to be provided as it is necessary to free the lives of the persons from risk, save the lives or organs from being lost, whose lives are in the risky condition upon falling into unexpected incident or emergency condition.

(b)        “Basic health service” means promotional, retributive, diagnostic, remedial and rehabilitative service easily and freely available from the state for the sake of fulfillment of health need of citizens generally, pursuant to sub-section (4) of Section 3.

(c)        “Non-governmental or private health institution” means a health institution operated with the investment and ownership of the non-governmental or private sector, upon receiving permission under the prevailing law.

(d)       “Physician” means a person registered in the concerned Council as a physician under the prevailing law.

(e)        “Public health supervisor” means the office-bearer designated for monitoring and regulation related to public health.

(f)        “Risk zone” means a workplace with any chemical, biological, climate change based, psycho-social, corporal, physical and geographic condition adversely affecting the  human health due to workplace or nature of work, and this term also includes the possible risk likely to occur upon the health workers at the time of health treatment as well.

(g)        “Prescribed” or “as prescribed” means prescribed or as prescribed in the rules framed under this Act.

(h)        “Traditional treatment provider” means a person providing treatment traditionally through herbs, Jantav and minerals.

(i)        “Ministry” means the Ministry of the Government of Nepal responsible for matters relating to health and population of the Government of Nepal.

(j)         “Committee” means the National Public Health Committee referred to in Section 50.

(k)        “Government health institution” means the health institution operated by the Federal, Provincial and Local Levels.

(l)         “Community health worker” means a health worker as well as a woman health volunteer working in the institution or community after having prescribed qualification or training from the recognized institute on the subject of health service.

(m)       “Service recipient” means the person receiving health service in a health institution.

(n)        “Service provider” means a physician, health worker and community health worker working in a health institution after achieving certain qualification or training on the subject of health service from a recognized health institute.

(o)        “Health worker” means a person registered in the concerned Council as a health worker under the prevailing law.

(p)        “Health service” means retributive, promotional, diagnostic, remedial, rehabilitative and palliative service provided, based on modern treatment (allopathy), Ayurved, homeopathy, Unani, natural treatment, acupuncture, Sowarigpa (Amchi) treatment system.

(q)        “Health institution” means a government health institution, and this term also includes a non-governmental or private, or cooperative or non-profit-making community health institution established under the prevailing law.

The Act Relating to Compulsory and Free Education, 2075 (2018)

 

 

Date of Publication in the Nepal Gazette

2075.6.2 (18 September 2018)

 

Act No. 16 of the year 2075 (2018)

An Act Made to Provide for Compulsory and Free Education

Preamble:

Whereas, it is expedient to make legal provisions relating to compulsory and free education, in order to ensure easy and equal access and continuity of all to education, and to make education universal, useful for life, competitive and qualitative, while focusing education on the building of nation, being committed to socialism based on democratic values and norms, by implementing, on the ground, the basic human rights of every person to acquire education and the fundamental right conferred by the Constitution;

Now, therefore, be it enacted by the Federal Parliament.

Chapter-2 Rights, Duties of Service Recipients and Responsibilities of Health Institutions

  1. Access to and certainty of health service: (1) Every citizen shall have the right to obtain quality health service in an easy and convenient manner.

(2) For the purposes of getting the service referred to in sub-section (1), it shall be the duty of every citizen to be involved in the programs relating to health as prescribed by the Government of Nepal, from time to time, under the prevailing law.

(3) No citizen shall be deprived of health service.

(4) Every citizen shall have the right to obtain free basic health services under the following headings, as prescribed:

(a)        Vaccination service,

(b)       Motherhood, infant and pediatric health service such as integrated infant and pediatric disease management, nutrition service, pregnancy, labor and child birth service, family planning, abortion and reproductive health,

(c)        Service relating to communicable disease,

(d)       Service relating to non-communicable disease and physical disability

 (e)        Service relating to mental disease,

   (f)        Service relating to elderly citizen’s health,

  (g)        Service of general emergency condition,

  (h)        Health promotion service,

(i)         Ayurveda and other accredited alternative health service,

(j)         Other services prescribed by the Government of Nepal by a notification in the Nepal Gazette.

(5) The Provincial and Local Governments may make necessary addition to the basic health services determined by the Government of Nepal pursuant to sub-section (4).

(6) The concerned government shall bear the burden of financial expenses of the services added under sub-section (5).

(7) Other provisions and processes relating to detailed descriptions, service flow and management of the services referred to in sub-section (4) shall be as prescribed by the Ministry.

(8) The Local Level may provide the basic health service in partnership with any health institutions operated under the Province and the Federation.

  1. Emergency treatment: (1) Every health institution shall provide emergency health service as prescribed.

(2) It shall be the duty of each health institution and health worker to provide health service referred to in sub-section (1).

(3) Notwithstanding anything contained in sub-section (2), if emergency health service is not available in any health institution, such health institution, after providing treatment available at such an institution, shall refer to another health institution for additional treatment.

(4) The expenses of treatment under this Section shall be borne by health insurance if it has been made, and by the person concerned, his or her guardian, family member, patron or the person who has accepted patronage if health insurance has not been in effect or the amount of health insurance is not sufficient to cover the expenses.

Provided that the health institution shall provide the health service under the basic health service without charge.

(5) While providing emergency health service under this Section, the concerned service recipient shall be required to adopt the process to be fulfilled for obtaining such service only after starting the treatment.

(6) Other provisions relating to emergency treatment service shall be as prescribed.

  1. Specialist service: (1) The Government of Nepal shall provide specialized services prescribed as necessary on the basis of nature of service, geographical condition and the rate of epidemic of the disease.

(2) The Provincial Government shall provide specialist’s service as per the standards prescribed by the Federal law.

(3) Other matters relating to the provision of the specialist’s services shall be as prescribed.

  1. Referral service: (1) Every health institution shall, after providing service available in its institution, if there is no possibility to provide further treatment to the patient who comes for treatment due to the structure, equipment of its health institution, lack of specialist’s service or any other appropriate cause, refer immediately to the health institution that can provide additional treatment to such a patient.

(2) While referring pursuant to Sub-section (1), the health institution shall fulfill the methods and procedures as prescribed.

(3) After establishing necessary referral system among health institutions that provide specialist’s service and basic health service, the Government of Nepal, Provincial Government and Local Level shall make necessary arrangement to make the service effective.

(4) Notwithstanding anything contained elsewhere in this Section, while referring the patient undergoing emergency treatment, referral shall be made by the referrer health institution, along with minimum equipment and available health facility available with it.

  1. To provide quality health service: (1) The Government of Nepal shall make arrangement for providing every citizen with quality health service from a health institution.

(2) The Government of Nepal shall, in order to provide the citizen with health service based on available resources and means, perform the following functions:

(a)        To determine policy for the protection and promotion of the health of citizens,

(b)       To provide service in an egalitarian manner by determining priority of health service.

(3) The Federation, Province and Local Level shall, in order to implement this Act, make arrangement for human resources, technology and equipment in such institution on the basis of necessity after establishing health institution that have fulfilled the prescribed standards.

  1. Duties of service recipient: The duties of the service recipient receiving service from a health institution or health worker shall be as follows:

(a)        To be aware regarding his or her own health, adopt healthy life style, profess yoga and physical exercise and use the service provided by the health institution,

(b)       To comply with the rules of the health institution by the person receiving health service,

(c)        To provide the health institution with actual information related to own health condition, and to help the health worker in the course of obtaining health service,

(d)       To respect and honor the health worker and health institution,

(e)        Not to commit any act that constitutes physical, mental and gender violence against a health worker,

(f)        To sign on treatment or discharge card by mentioning in case of refusal made to receive partial or full treatment recommended,

(g)        To obtain service upon visiting the health institution referred by the health institution subject to Section 6.

  1. Responsibility for getting treated: If any family member, patron or any person, whose patronage has been accepted falls ill, the guardian, family member, patron and the person who has accepted patronage shall have the responsibility to take such a person to a health institution, get treated, bear treatment expenses and help and facilitate in the treatment.
  2. To provide service recipient with information: (1) Every health institution and health worker providing treatment shall provide the service recipient with information on the following matters:

(a)        Regarding his or her condition of health and treatment of every service recipient,

Provided that if there is a sufficient ground that it may be against the interest of him or her or the community while providing information of the health of the service recipient, it shall not bar the health institution from keeping such information as confidential.

(b)        Regarding diagnosis of the illness, natural effect of the diagnosed illness and standards, and alternative of, the service related to treatment,

(c)        Regarding estimated expenses and potential result related to alternative health treatment,

(d)       Regarding the refusal of health service likely to be made by the service recipient, and potential result, risk and liability likely to arise while refusing the service.

(2) While providing the service recipient with information referred to in sub-section (1), the health institution shall provide such information in a language he or she can understand, as far as possible.

(3) Notwithstanding anything contained in sub-sections (1) and (2), if there is no condition to provide the information of the service recipient’s health condition to the concerned service recipient, such information shall be provided to the adult member of his or her family.

  1. To obtain informed consent of service recipient: (1) Every health institution shall obtain informed consent of the service recipient, while providing him or her with health service.

Explanation: For the purposes of this Section, the term “informed consent” means written or oral consent given by a person who is legally competent to obtain health service.

(2) For the purposes of sub-section (1), written consent shall be obtained to provide the prescribed treatment.

(3) Notwithstanding anything contained in sub-section (1) and (2), health service may be provided without informed consent of the service recipient in any of the following circumstances:

(a)        If the service recipient is not in a condition to give consent or has not given anyone else permission or authority to give such consent, his or her wife or husband, father or mother, grandfather or grandmother, adult son or daughter, brother or sister so far as available respectively or available closest person of the service recipient who has given such consent.

(b)       If the health service has been provided without consent under the prevailing law or by an order of the court,

(c)        If there is a serious threat likely to occur upon public health if any person is not treated,

(d)       If there is a possibility of death of the concerned patient or likely to occur irreparable damage to his or her health if it is delayed to provide health service,

(e)        If the concerned person has not refused to obtain health service in an expressed or unexpressed manner or by conduct,

(f)        In other cases as prescribed.

  1. To behave equally: (1) While carrying out treatment pursuant to this Act, it shall be the duty of the concerned health worker to behave equally and respectfully towards all the service recipients.

(2) Notwithstanding anything contained in sub-section (1), a health institution may prioritize on the basis of the seriousness of the health of the patient while carrying out treatment.

(3) No health institution shall discriminate, or cause to be discriminated, anyone in the treatment on the basis of his or her origin, religion, race, caste, ethnicity, gender, occupation, sexual and gender identity, physical or health condition, disability, marital status, pregnancy, ideology or similar other basis as such.

  1. Professional conduct: Health institutions and health workers shall comply with the professional conduct as determined by the concerned councils.
  2. To maintain confidentiality: (1) While providing health service, information including health condition of the service recipient, diagnosis or treatment obtained by him or her shall be kept confidential.

(2) Notwithstanding anything contained in sub-section (1), nothing herein contained shall be deemed to prevent the information from being published, in any of the following circumstances:

(a)        If the service recipient gives written consent to publish the information,

(b)        If any information is to be published in accordance with the order of the court or prevailing law,

(c)        If it appears to have serious impact in public health if information is not published.

(3)        For the purposes of clause (c) of sub-section (2), it shall be in accordance with the decision made by the prescribed official regarding whether serious impact is going to occur in the public health.

  1. To provide discharge summary: Each health institution shall provide the patient, who has undergone treatment upon getting admission to such an institution, with a discharge summary, along with the information as prescribed, while discharging such a patient.
  2. Liability of health institution: (1) Each health institution shall provide health service from a qualified service provider only.

(2) Each health institution shall adopt necessary safety measures towards not spreading infection and preventing any disease.

(3) Each health institution shall make arrangement for the transmission of following information relating to health service provided by it:

(a)        Available health service, its nature, estimated time and cost  needed,

(b)       Work operation table and time schedule of physicians or health workers,

(c)        Procedures to establish access to health service,

(d)       Procedures relating to complaint management.

  1. To provide information to local administration: (1) In case anybody takes a person to any health institution for the treatment due to accident or any other reason, such a health institution shall provide such a person with treatment service as immediately available with it, and if such person is not identified, it shall provide such information to the concerned local administration.

(2) While providing information pursuant to sub-section (1), the health institution shall provide information of the person treated and other information related to him or her as far as available.

(3) After receiving information pursuant to sub-sections (1) and (2), the local administration shall give information by searching for the family or guardian of the concerned person.

  1. To make a complaint: If additional complication appears in the health of any service recipient in the course of treatment or if he or she has some doubt in the process of treatment, he or she may make a complaint as prescribed to the prescribed authority against the health worker and health institution involved in the treatment.
  2. To impose condition and restriction: The chief of the health institution may impose certain conditions and restrictions in the service to be provided by the health institution on the basis of health condition of the service provider under the prevailing law.
  3. To adopt necessary measures: Each health institution shall, subject to the prevailing law, adopt necessary measures towards the safety of the employees and preventing infection and disease.

Chapter-1 Preliminary

 

  1. Short title and commencement: (1) This Act may be cited as the “Act Relating to Compulsory and Free Education, 2075 (2018).”

(2) This Act shall commence at once.

  1. Definitions: Unless the subject or context otherwise requires, in this Act,

(a)        “Compulsory education” means a mandatory provision to regularly study and complete basic level of study by the children of the age prescribed by the Government of Nepal, upon getting admitted to schools or other alternative educational institutions.

(b)        “Guardian” means the father, mother of a child or the person whose name is registered at the school as the guardian, and this term also includes his or her guardian or curator.

(c)        “Economically destitute” means the condition of having annual income that is less than the prescribed limit.

(d)       “Basic education” means the school education from grade one to grade eight.

(e)        “Prescribed” or “as prescribed” means prescribed or as prescribed in the rules framed under this Act.

(f)        “School with private investment” means a school that is established or operated with private investment, and this terms also includes any institutional school existing at the time of the commencement of this Act.

(g)        “Free education” means education to be provided by the school or educational institution without receiving any fee under any heading from the student or guardian.

(h)        “Head teacher” means the executive chief of a school who fulfils managerial and administrative responsibilities by taking up leadership of the school, and this also includes the principal or other person who exercises the executive authority, who has major responsibility of the management of the school or teaching institute.

(i)         “Early childhood development and education” means childhood development and education of the period of one year focusing on overall development of the children, which is provided for the children who have completed the age of four years before stepping into grade one.

(j)         “Secondary education” means education from grade nine to grade twelve or equivalent thereto.

(k)        “Mother tongue education” means education provided through any mother tongue of the Nepali community, which is spoken in Nepal, and this terms also includes to multi-lingual education based on mother tongue.

(l)         “School” means a school with public or private investment, that is operated upon being established pursuant to the prevailing law, and this term also refers to any community or institutional school existing under the prevailing law at the time of the commencement of this Act.

(m)       “Student” means a student studying at the school upon being admitted, and this term also includes a person acquiring education from the programs, including non-formal, open, alternative education programs.

(n)        “Special education” means education provided in special way and with certain means for the children who have visual impairment, are deaf, have autism, intellectual disability, hard of hearing or extreme physical disability or who are in other condition of similar nature, by placing them at separate groups.

(o)        “Teacher” means any teacher of a school, and this term also includes the head teacher.

(p)        “Teaching institute” means a school or institute that provides higher education, and this term also includes an institute that provides non-formal, alternative or open education.

(q)        “Public school” means a school operated with the investment or grant of the Government of Nepal, Provincial Government or Local Level, and this term also includes a school operated as a community school pursuant to the prevailing law.

(r)        “Public educational trust school” means a welfare school established or operated under the public educational trust, with non-profit motive.

Chapter-2 Access of Citizens to Education and Liability of the State

 

  1. Right to get education: (1) Every citizen shall have the right of equal access to quality education. No one shall be discriminated on any ground to get education.

(2) Every Nepali community residing in Nepal shall have the right to acquire education in the mother tongue.

(3) For the purposes of sub-section (1), every citizen shall have the right to become literate, to get early childhood development and education, basic education, secondary education and higher education, pursuant to this Act or the prevailing law.

(4) Every citizen who has acquired education shall have the right to enter into, study, research, participate in examinations in and acquire educational certificate from any school or teaching institute, pursuant to this Act or the prevailing law.

(5) Every illiterate citizen shall have the right to become literate as prescribed.

(6) Every citizen shall have the right to get higher education according to his or her qualification, capacity and interest, upon fulfilling the conditions and standards referred to in the prevailing law.

(7) A citizen with disability shall also have the right to get education by means of special education.

(8) Citizen who are economically destitute, with disabilities and are Dalit shall have the right to get free higher education.

(9) The children of the martyrs, who have sacrificed their lives in the process of popular movement, armed struggle, revolution, of the disappeared persons, of conflict victims, of the wounded, of the persons with disabilities shall have the right to get special opportunity as prescribed.

(10) Every child shall have the right to get quality education from the qualified teacher as provided in the prevailing law.

  1. Liability of State to provide education: (1) The Government of Nepal, Provincial Government and Local Level shall have the liability to provide every citizen with education up to the basic level, and the responsibility to make necessary arrangements in this respect.

(2) The State shall have the liability to provide every citizen with education up to the secondary level.

(3) The Government of Nepal shall make necessary coordination and leadership, for the purposes of sub-sections (1) and (2).

  1. Duty of the citizens: (1) Every citizen shall have the duty to get education of the basic level.

(2) Every citizen shall have the duty to send his or her children, who are of the age group of acquiring the basic education, to school regularly.

Chapter-3 Relating to Health System and Management of Service

  1. Operation and regulation of health institutions: (1) The provisions relating to level-wise structure of the health institutions and the services to be provided by such institutions shall be as prescribed by the Ministry.

(2) Minimum standards relating to health institutions and the services shall be as determined by the Ministry.

(3) Each health institution shall provide services subject to the standards referred to in sub-section (2).

(4) The health institutions established and in operation prior to the commencement of this Act, shall fulfill the standard prescribed pursuant to sub-section (2) within the time specified by the Ministry.

(5) The Federal, Provincial and Local Levels may, in order to provide health service, carry out necessary partnership with private or non-governmental health institutions.

(6) The Government of Nepal may determine the standards, license and regulation of the services to be provided by the private and non-governmental, private or cooperative, or non-profit-making or community health institutions by a notification in the Nepal Gazette,

(7) The Federation, concerned Province or Local Level may issue license to operate any health institution pursuant to the standards determined under sub-section (6).

(8) The provisions relating to issuing license to any health institution referred to in sub-section (7), and renewal thereof and carrying out monitoring, evaluation and regulation of such a health institution shall be in accordance with the Provincial and Local law.

(9) Notwithstanding anything contained in sub-section (8), the Provincial and Local Levels may issue a license, renew and carry out monitoring and regulation of any health institution under this Act, until the enactment of the Provincial and Local laws.

  1. To obtain license: (1) A non-governmental or private health institution shall provide health service only after obtaining the license as prescribed.

(2) The health institution in operation at the time of the commencement of this Act without obtaining the license shall obtain the license pursuant to sub-section (1) within the time prescribed by the Ministry.

(3) In the case of the traditional treatment service, service shall be provided after obtaining approval pursuant to the standards prescribed by the Local Level.

  1. To be ipso facto terminated: The license of a health institution that does not meet the standards prescribed under Section 21 and operating without obtaining the license under Section 22 shall be deemed to have been ipso facto terminated.
  2. To provide health service from elsewhere except health institution: (1) The Local Level and Provincial Government may provide school health service in cooperation with the educational institutions.

(2) The nature and standards of the school health service to be provided pursuant to sub-section (1) shall be as prescribed by the Province and Local Level.

(3) Any health institution may conduct specialist’s service through mobile camps by obtaining permission from the prescribed body of the concerned Province.

(4) The process and standards to be fulfilled while providing mobile health camp pursuant to sub-section (3) shall be as prescribed by the Provincial Government.

(5) The process and standards to be fulfilled while providing health service from door to door shall be as prescribed by the Local Level.

  1. To maintain quality by health institution: (1) The quality of the service to be provided by a health institution shall be ensured in accordance with the Federal law.

(2) The Ministry may implement, or cause to be implemented by making standards of health services.

(3) The prescribed body shall carry out monitoring and evaluation from time to time as to whether the standards referred to in this Section have been fulfilled or not.

(4) Each health institution shall have the duty to comply with the directives given by the concerned body after the monitoring and evaluation carried out pursuant to sub-section (3).

  1. Human resource management and development: (1) The Government of Nepal shall prepare and enforce the policy and standards relating to development, distribution and use of human resource of the health sector.

(2) While prescribing standards referred to in sub-section (1), such standards shall be prescribed on the basis of estimation of human resources, technology and equipment by analyzing and mapping of long-term, mid-term and immediate requirements for the development, management and use of human resource.

  1. Investigation, regulation, quality measurement and monitoring: (1) The Government of Nepal and the prescribed body may conduct regulation, inspection, monitoring, investigation and evaluation as to whether or not the health institution and service provider have maintained the quality pursuant to the prescribed standards.

(2) If it appears, from the result of the inspection, investigation and monitoring carried out pursuant to sub-section (1), that public health would be affected due to non compliance of the set standards by the institution, the body providing approval for the establishment and operation of the institution may give order that may include even the closing of such an institution.

(3) The concerned Government shall have the responsibility to close or cause to be closed such an institution pursuant to the order referred to in sub-section (2).

(4) Appropriate mechanism shall be constituted in order to conduct an investigation, regulation, measurement of quality, monitoring and evaluation.

  1. Health finance and social security: (1) A separate health fund shall be set up out of the amount collected from the tax to be imposed for controlling the production of goods and activities that affect public health.

(2) The following amount shall be credited to the fund referred to in sub-section (1):

  (a)        Amount received from the Government of Nepal,

 (b)       Amount received from the Provincial Government,

 (c)        Amount received from the Local Level,

(d)       Amount received from any non-governmental and private organization and institution,

(e)        Amount received from any foreign organization and institution.

                        (3) The amount of the fund set up pursuant to sub-section (1) shall be spent in the areas of public health.

(4) The provisions relating to the operation of fund set up pursuant to sub-section (3) shall be as prescribed.

(5) The provisions relating to health insurance of the citizens shall be in accordance with the prevailing law.

  1. Provisions relating to price of medicine, prescription, pharmacy and free medicine: (1) The physicians and health workers shall, while prescribing a medicine, write a generic name of the medicine.

(2) Notwithstanding anything contained in sub-section (1), in the case of qualitative domestic products, act shall be done within two years from the date of the commencement of this Section so as to make such act consistent with sub-section (1).

(3) Notwithstanding anything contained in sub-section (1), in the case of a patent and new medicine, it shall not prevent from recommending with the brand name.

(4) Each government hospital shall ensure regular availability of medicine with fair price by operating the pharmacy of its own.

(5) Determination of the price of medicines shall be as prescribed by the Government of Nepal.

(6) Each health institution and service provider shall have to comply with the standard treatment system so that medicines will be properly used and promoted.

(7) The drug seller shall make necessary arrangement for the storage, sale and distribution of medicines by maintaining quality of medicines as prescribed.

(8) The drug seller shall not sell and distribute any medicine without the prescription of the physician.

(9) Other provisions relating to medicines shall be in accordance with the prevailing law.

  1. Not to provide expenses for foreign treatment: Notwithstanding anything contained in the prevailing law, if any person is to be treated in a foreign country, the expenses to be spent on this shall not be made available by the Government of Nepal.
  2. To provide extended hospital service: (1) A health institution may provide extended hospital service as necessary on the basis of available resources, means and human resources.

(2) Such health institution shall provide the physicians and health workers providing service pursuant to sub-section (1) with additional allowances and other incentives for providing such service.

  1. Not allowed to serve elsewhere: (1) Any physician, health worker or the employee working in a government hospital and health institution shall not serve elsewhere during the time prescribed by the concerned body.

(2) If any physician, health worker or employee wishes to serve elsewhere during the time other than the time mentioned in sub-section (1), he or she shall obtain prior approval of the concerned body.

  1. Power to set up emergency health treatment fund: (1) The Ministry and Provincial Government shall set up an emergency health treatment fund to make arrangements for bearing the expenses of treatment of the poor and destitute, the person whose house and address is not traced, the family members of a martyr who sacrificed life in the course of popular movement, armed struggle and revolution, the family of the enforced disappeared person, the warrior of democracy, conflict victim and the displaced, the disabled, the wounded and the victim, in the case of not being able to bear the expenses incurred in treatment.

(2) The provisions relating to the operation of the fund referred to in sub-section (1) shall be as prescribed.

Chapter-3 Compulsory and Free Education

 

  1. To provide compulsory education: (1) After the commencement of this Act, the State shall make provisions to provide compulsory education up to the basic level to every child who has completed four years but not completed thirteen years of age, through every Local Level.

(2) In addition to the education mentioned in sub-section (1), at least one year’s early childhood development and education shall be provided after the completion of the age of four years.

(3) The Local Level shall make provision to provide education up to the basic level safely for the children affected due to other reasons, including a natural disaster, accident, unexpected incident.

  1. To get children to be admitted: (1) After the commencement of this Act, the guardian concerned shall get every child admitted in the class appropriate to his or her age, at the school which is convenient to him or her.

Explanation: For the purposes of this Chapter, the expression “school which is convenient” means the school which is located at a distance of up to two kilo-meters generally from the place of residence where the guardian of the concerned child resides.

(2) Notwithstanding anything contained in sub-section (1), nothing shall bar the opening of a school at a distance generally within two kilo-meters, having regard, inter alia, to the geographical condition, density of population and the number of children of school age.

(3) The guardian shall not separate a child who has been admitted to a school pursuant to sub-section (1) from the school or prevent him or her from going to school, with the object to deprive him or her of reading and learning, without completing education up to the basic level.

(4) If the children cannot go to school due to economic, geographical or physical, mental condition or any other adversity, provisions may be made for their study at any boarding school as prescribed.

(5) The guardian who does not get the children of school age admitted to school or who separates the children from school even after getting admission, without completing the education of the basic level, may be deprived of receiving any facility to be provided from the Local Level.

(6) Before making deprivation of the facility pursuant to sub-section (5), provision shall be made to encourage the guardian concerned to send the children to school, in making necessary consultation with such a guardian.

  1. To acquire education from convenient school: (1) Every child shall have the right to acquire education up to the basic level or secondary level from the school which is convenient from the place of residence of his or her guardian.

(2) If no school is available pursuant to sub-section (1) in the case of any children of the age of acquiring education of the basic level, the Local Level concerned shall establish school at such place or make alternative provision for such children to acquire education up to the basic level within three years from the commencement of this Act.

(3) Nothing contained in this Section shall prevent the guardian concerned form getting his or her children admitted to the school of his or her choice or from acquiring education by the children concerned upon getting admission to other school chosen by him or her.

  1. Not to refuse to get admission: (1) If the guardian requests to get his or her child admitted to the school which is convenient to him or her or any other school to acquire education up to the basic level, the head teacher of such school shall not refuse to admit, except in the following circumstances:

(a)        If such a number of children have been already admitted as determined for any grade for teaching,

(b)        If he or she has not completed the minimum standard of the grade in which he or she desires to get admission,

(c)        If additional students cannot be admitted due to physical condition of the school.

(2) Notwithstanding anything contained in clauses (a), (b) and (c) of sub-section (1), the children with disabilities or who are economically indigent shall be admitted by the school which is convenient to them.

(3) If any child is to be refused to get admission pursuant to sub-section (1), the head teacher concerned shall make recommendation for the admission of such a child to other appropriate school, if any, situated nearby such a school.

(4) If any child cannot be admitted pursuant to sub-section (3), information of the reason therefor in writing shall be given to the guardian and be given to the Ward Office concerned, and such Ward Office shall facilitate in the admission of such a child at the school situated within the Ward concerned or elsewhere.

(5) If a child cannot be admitted due to the circumstance referred to in clause (b) of sub-section (1), his or her guardian, if he or she so desires, shall get him or her admitted at the same grade of the basic level at the same school, the level of which he or she can complete.

(6) Except for the circumstance set down in this Section, the refusal to admit the children shall be punishable.

  1. Not to expel from school: (1) A child acquiring education of the basic level upon being admitted to any school may not be expelled from the school.

(2) A child admitted to a school may not be prevented from or deprived of acquiring basic education or taking examination for the reason that the child has done any undisciplined act or has bad conduct. The school shall provide such a child with the facility of counselling service.

(3) If any improvement of any child acquiring education of the basic level has to be made in the matters including discipline, conduct and study, the head teacher of the school concerned, upon holding discussion or consultation with the guardian concerned, shall adopt psycho-social counselling or other necessary alternatives to create the environment for such a child to acquire education of up to the basic level.

  1. To readmit: (1) If any child who has completed the age of five years but not completed the age of twelve years has not completed the study of up to the basic level for the reason of not being able to get admission to a school or has quit the school without completing the education of the basic level, the school shall readmit him or her according to his or her age or level, subject to Section 9.

(2) If it is necessary to get the child admitted pursuant to sub-section (1) up to the level of other children of the grade to which he or she has been admitted, the school concerned shall make arrangement for an alternative measure.

  1. To transfer: (1) If the school to which any children have been admitted has not obtained approval to impart teaching up to the basic level or such a school has been merged with another school or the school has to be closed for any reason, the Local Level concerned shall make provision to transfer the children who have not completed education of the basic level from such school to another school which is convenient to them.

(2) The children transferred pursuant to sub-section (1) shall not be readmitted to such a school.

(3) Notwithstanding anything contained elsewhere in this Section, this Section shall not prevent the students referred to in sub-section (1) or their guardians from getting admission to any other school of their respective choice.

  1. To provide transfer certificate: (1) If any child who has not completed education up to the basic level or his or her guardian makes a request for the transfer certificate, showing some reason, in order to get admission to any other school, quitting the school where he or she is studying, to acquire such education, the head teacher concerned shall immediately provide the transfer certificate, setting out the details of the study he or she has completed.

(2) After submission of the transfer certificate referred to in sub-section (1), the school which the child has desired to get admission to shall immediately admit him or her, subject to Section 9.

  1. To make provision of alternative education: (1) The children who cannot acquire education of the basic level upon studying full time after getting admission to a school due to unavailability of the school which is convenient to them or any other reason shall have the right to get alternative education up to such level.

(2) Other provisions relating to alternative education up to the basic level shall be as prescribed.

  1. To provide non-formal and open education: (1) The children who cannot regularly study upon getting admission to a school may be provided with education of the secondary level from any non-formal or open school.

(2) The Government of Nepal shall make provisions to establish and operate non-formal and open schools on the basis of necessity for the sake of providing secondary education through Local Level.

(3) Other provisions relating to non-formal and open school shall be as prescribed.

  1. To provide traditional education: (1) In order to preserve and protect the values, norms, culture, custom and practice related to education since ancient time and to continue them by improving them to the tune of the time, children may be provided with education by operating institutes such as Gurukul, Gumba, Madarsa.

(2) The Gurukul, Gumba or Madarsa to be operated for providing education referred to in sub-section (1) shall be registered in the Local Level concerned.

(3) While providing education to the children, the Gurkul, Gumba or Madarsa to be operated upon being registered pursuant to sub-section (2) shall abide by such other conditions and standards as determined by the Local Level in accordance with law and as prescribed.

(4) In addition to the education provided by educational institutes such as Gurukul, Gumba and Madarsa operated upon being registered pursuant to sub-section (2), education shall be provided according to the curriculum determined by the Government of Nepal.

(5) Other provisions relating to providing traditional education shall be as prescribed.

  1. Provisions relating to technical education: (1) Every citizen who completes the basic level shall have the right to acquire secondary education or technical education equivalent to it pursuant to the prevailing law.

(2) Other provisions than that set forth in this Section relating to technical education to be provided after the basic level shall be pursuant to the prevailing law.

  1. Education of children whose guardians are not identified: (1) If there are children whose guardians are not identified or traced within the territorial jurisdiction of any Local Level, the Local Level concerned shall have the responsibility for providing such children with education up to the basic level, making provisions for their study and other matters.

(2) The concerned Ward Committee of the Local Level shall be responsible for making arrangements for providing education pursuant to sub-section (1).

(3) Notwithstanding anything contained in sub-section (1), if the guardian of the child concerned is identified or traced, the guardian himself or herself shall take the responsibility.

(4) Other provisions relating to the studies of the children whose guardians are not identified shall be as prescribed.

  1. To be disqualified: Notwithstanding anything contained in the prevailing law, for the purpose of creating environment for compulsorily acquiring basic education by all the citizens, the person who has not acquired the basic education shall be deemed to be disqualified to obtain any of the following opportunities after 1 Baishakh 2085 (14 April 2028):

(a)        To enter into the service of the Government of Nepal, Provincial Government, any governmental service of the Local Level or any institution that is under the full or partial ownership, grant or control of the Government of Nepal, Provincial Government or Local Level, or to be elected, appointed or nominated to any post of any institution established in the governmental, non-governmental or private sector,

(b)        To incorporate any company, firm, cooperative organization or non-governmental organization or to become promotor shareholder, director or member or any office bearer of such a company, firm or organization.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in that sub-section shall affect any person who has already completed the age of twelve years or held any post, been elected, nominated or appointed to any post or has been already in service in such post or the facility already obtained or enjoyed prior to the commencement of the provision of sub-section (1).

(3) Notwithstanding anything contained in sub-section (1), this sub-section shall not be applicable to any person who is unable to acquire education because of weak health, multiple disability or similar other complex situation.

  1. Education up to secondary level to be free: (1) Every citizen shall have the right to acquire free education up to the secondary level from the State.

(2) While acquiring free education, every citizen shall abide by this Act and the conditions referred to in the other prevailing laws.

(3) Other provisions relating to free education shall be as prescribed.

  1. To provide textbooks: (1) The Government of Nepal shall provide the Local Level with the amount as prescribed for the textbooks to the children of every public school who acquire education of the basic level or secondary level.

(2) After receiving the amount pursuant to sub-section (1), the Local Level shall provide the school concerned with the amount for the purchase of the textbooks before the commencement of an academic session.

(3) After receiving the amount pursuant to sub-section (2), the school shall purchase the textbooks, and provide them to the students at the time of admission.

  1. To provide educational materials: (1) The Local Level may provide educational materials, including copies, pens to the children who are economically destitute and admitted to the public school to acquire education up to the basic level.

(2) The Local Level shall make provisions for necessary lab, materials for extra-curricular activities, sports materials, sports infrastructures, computers and the access to information technology, as prescribed, for the sake of the public schools providing education up to the basic level.

(3) Other provisions relating to providing educational materials shall be as prescribed.

  1. To provide scholarship: (1) In order to provide education up to the basic level, the Local Level concerned may provide monthly scholarship as prescribed to the children belonging to the prescribed communities of the more backward regions than the indicators prescribed in the perspective of human development index or economically destitute or the family of the citizen having disability.

(2) The scholarship received pursuant to sub-section (1) shall be spent for the management of educational materials or any other materials that can support in the learning of the students.

  1. To make arrangement for treatment: (1) The Local Level may make arrangements relating to health counselling for and treatment of the students studying at the public schools upon coordinating with the health institutions operated pursuant to the prevailing law.

(2) The responsibility to manage free health treatment in the schools of private investment and public educational trust as prescribed shall be vested in the schools concerned.

  1. Provision relating to day breakfast: The Government of Nepal may provide day breakfast or the expenses of day breakfast through local government for the sake of continuity in teaching and learning of the children of the prescribed community of the more backward region than the prescribed indicators in the perspective of human development index or economically destitute or the citizen having disability.
  2. Language of instruction: (1) The medium of instruction to be provided by the schools shall be the Nepali language, English language or both the languages or mother tongue of the Nepali community concerned.

(2) Notwithstanding anything contained in sub-section (1), if a foreigner has to study compulsory Nepali subject while studying in Nepal, he or she may study any other language subject instead of this, if he or she so wishes.

  1. School with private investment to be service-oriented: (1) Any school with private investment shall operate early childhood development and education and the basic education to make it service-oriented and public welfare.

(2) The detailed provisions to make the schools with private investment service-oriented and public welfare shall be as determined by the Government of Nepal.

(3) Notwithstanding anything contained in the prevailing law, every school with private investment and school operated under the public educational trust shall make reservation of the seats to provide free education for the students, as follows, of total number of students from early childhood development and education up to grade twelve, on the basis of the number of students of such a school:

(a)        At least ten percent by the school which has students up to five hundred,

(b)        At least twelve percent by the school which has students from five hundred to eight hundred,

(c)        At least fifteen percent by the school which has students more than eight hundred.

(4) Notwithstanding anything contained in sub-section (2), the scholarship which is being provided by any school at the time of the commencement of this Act must not be reduced.

(5) Qualified and capable children shall be admitted to the seats reserved pursuant to sub-section (2) on the ground of competition among the groups prescribed, in accordance with the selection procedures as adopted.

(6) The facilities to be provided by the schools with private investment for the children admitted upon being selected for the reserved seats pursuant to sub-section (1) shall be as prescribed.

(7) The students who study free of charge upon being selected pursuant to sub-section (2) to the reserved seats referred to in sub-section (1) shall be allowed to apply for the sake of free study or for acquiring scholarship pursuant to the prevailing law for the grade or level higher than the grade he or she has acquired free education.

 

 

Chapter-4 Blood, Use of Blood Based Substances and Human Organs Transplant

  1. Blood transmission service: (1) Only the institution which has obtained the license issued by the Ministry shall provide blood transmission service.

(2) By setting up units at different places for providing blood transmission service, the institution obtaining the license pursuant to sub-section (1) shall provide blood transmission service and other related services subject to the license.

(3) While providing the service to the recipient, the institution providing blood transmission service pursuant to sub-section (1), shall only provide the blood having no infection of any kind of disease.

(4) Other provisions relating to issuing license and renewal thereof in accordance with this Section shall be as prescribed.

  1. Human organs transplant and use: The provisions relating to human organs transplant shall be in accordance with the prevailing law.
  2. To conduct and manage autopsy: (1) The authorized physician shall, in order to conduct autopsy under the prevailing law, conduct autopsy as prescribed.

(2) After autopsy, unclaimed dead body may be utilized in the studies of medical sciences after fulfilling the process prescribed.

  1. To manage ambulance and vehicle for corpse: (1) The health institution as prescribed by the Ministry shall provide the service of ambulance and vehicle for corpse subject to the standards prescribed.

(2) Other provisions relating to the operation of service of ambulance and vehicle for corpse shall be as prescribed.

  1. Identification of cause of human death: If someone dies while undergoing treatment in a health institution, examinations shall be held, as prescribed, in order to identify the cause of the death.

Chapter-5 Social, Cultural and Environmental Determinants for Protection, Promotion and Improvement of Public Health

  1. Quality of consumable goods: (1) The Government of Nepal may, in order to make the products, storage, sale and distribution of the consumable goods including food, meat and water, qualitative and fair, prescribe the minimum quality standards in accordance with the Federal law.

(2) It shall be the duty of the Province, Local Level and all the concerned to comply with the standards referred to in sub-section (1).

(3) Other provisions relating to the quality of consumable goods shall be in accordance with the prevailing law.

  1. Noise and air pollution: (1) The Government of Nepal may, for reducing the effect to the public health by noise, air, water and visibility pollution, determine standards regarding this in accordance with the Federal law.

(2) It shall be the duty of the Province, Local Level, general public, entrepreneurs, businesspersons, organizations and institutions to comply with the standards referred to in sub-section (1).

(3)  The Government of Nepal shall, for reducing the effect to the public health by sound, air, water and visibility pollution, determine standards as to the noise, air, water, and visibility pollution in accordance with the Federal law.

  1. Sanitation and waste management: (1) The Government of Nepal may, in order to control or cause to be controlled the adverse effect to the human health by environmental pollution and waste, make necessary standards in accordance with the prevailing Federal law.

(2) The Government of Nepal shall make necessary standards for collecting, reusing, refining, disposing and regulating the health friendly waste.

(3) It shall be the duty of the Provincial and Local Level to comply with the standards referred to in sub-section (1) and (2).

(4) Each health institution shall manage the risk-free and risky waste by separating them pursuant to the prescribed standards.

(5) Each health institution shall provide the service providers with clean drinking water pursuant to the prescribed standards.

  1. Public health friendly residence, public transport and road infrastructure and safety: (1) While constructing residence area, the standards and quality prescribed by the Federal law shall be maintained for making health friendly.

(2) While constructing road infrastructures, construction shall be made to reduce road accidents and considering health promotion. While upgrading the standard of the newly constructed and old roads, arrangement shall be made for the footpaths, disabled friendly structures and bicycle lanes at the fixed places in accordance with the prevailing law.

(3) The Government of Nepal may, while operating the public transport, specify the necessary standards and implement, or cause to be implemented, such standards in order to make it environment friendly without adversely affecting the public health.

  1. Industry and urbanization: (1) In order to prevent by identifying the adverse effect likely to occur in the public health and to mitigate risk, public health impact assessment shall be conducted in the industries, businesses and projects before obtaining approval.

(2) The standards, mechanism and level wise working area of the public health impact assessment referred to in sub-section (1) shall be as prescribed by the Federal law.

(3) If adverse effect occurs in the public health as a result of failure to manage waste properly by any industry, business and project or due to any kind of radiation, the health treatment for the persons affected by this and in the case of the physical damage, animal and livestock and other damage occurred, arrangement for its appropriate compensation shall be made by the industrialist, businessperson and the project concerned.

(4) The Federal, Provincial and Local Level shall make arrangement for the promotion of public health friendly urbanization, having sufficient management for sports, recreation spot, park, walking space, riding bicycle, in consideration of good health.

(5) While determining the grant to be obtained by the Local Level under the prevailing law, the Government of Nepal shall develop and include public health friendly indicators.

  1. Safety of health of workers working in risky zone: (1) For the safety of health of the workers working in the risky zone, the concerned employer shall adopt safety measures in accordance with the prevailing law.

(2) The employers shall procure health insurance of employees or staffs working in risky zone pursuant to Sub-section (1) in accordance with the prevailing law.

(3) If any staff or employee is injured or dead due to the use of tool, equipment or any other material at the risky workplace referred to in sub-section (1), or if any health worker is seriously infected or falls ill in the course of providing service, the concerned employer shall make arrangements for health treatment and appropriate compensation.

(4) The health worker, staff or employee working at a risky workplace shall be provided with the risk allowance by the concerned employer as prescribed by the Government of Nepal.

  1. Advertisement, dissemination and transmission affecting public health: (1) No advertisement of the production, distribution, dissemination and transmission of advertising materials that adversely affect human health, including that of alcohol, cigarette, tobacco or tobacco-based substances shall be made.

(2) Production, distribution, dissemination and transmission of advertisements by keeping wrong or misleading information to attract towards any materials and services that affect mental and physical health shall be prohibited.

  1. Social, cultural superstitions affecting public health: The Federal, Provincial and Local Level may adopt necessary measures for controlling social and cultural superstitions that affect adversely in the public health.
  2. Special social security and programs for target groups: (1) The Local Level and Provincial Government shall make necessary arrangements to implement the programs for special social health security for the women, children, adolescents, Dalits, martyrs’ families, and other targeted groups as prescribed by the Government of Nepal.

(2) Other provisions relating to health services, facilities to be provided for the targeted groups pursuant to sub-section (1) and the process thereto shall be as prescribed.

Chapter-6 Emergency Health Service and Management

  1. Emergency health service and management: (1) There shall be a rapid response team and emergency physicians’ group as prescribed in order to extend health service immediately during emergency circumstances.

(2) The Federal, Provincial and Local Level shall develop emergency health plan and enforce it.

(3) While developing the plan referred to in sub-section (2), the Federal, Provincial and Local Level shall develop it in consonance with the standards and directives determined by the Government of Nepal under the Federal law.

(4) The Local Level may declare a state of public health emergency in accordance with the prevailing law.

Provided that, if any disaster occurs in more than one Local Level, the concerned Province, and if the public health disaster occurs in more than one Province, the Government of Nepal may declare state of public health emergency as prescribed.

(5) The information relating to the declaration of state of public health emergency shall be disseminated and transmitted by public medium for all the concerned.

(6) The period and zone of public health emergency including other aspects may be added or reduced or removed on the basis of available data and information.

(7) Other provisions relating to the emergency state of health shall be as prescribed.

  1. Prevention, information and treatment of infectious disease: (1) The list of infectious diseases shall be as prescribed by the Government of Nepal.

(2) If highly hazardous infectious disease outbreaks at any place, it shall be the duty of the concerned person to provide the health institution or public health official with its information.

(3) If any person is found to have been affected with infectious disease, management of his or her treatment shall be immediately made by the concerned health institution or health worker.

(4) If patients are identified with the listed infectious diseases, the concerned health institution or the health worker shall transmit the information to the concerned body within the period as prescribed pursuant to the standards prescribed.

(5) The concerned Local Level shall have the responsibility for conducting additional studies and management on time, on the basis of the information received pursuant to sub-section (4), upon obtaining necessary support from the Province and the Ministry, as prescribed.

(6) A health institution shall make necessary arrangements for the treatment of the patient with infectious disease.

(7) Other provisions relating to the prevention of infectious diseases shall be as prescribed.

Chapter-7 National Public Health Committee

  1. National Public Health Committee: (1) For addressing comprehensive social determinants of health affecting human health, making policy-wise recommendation on inclusion of the issues of public health into the policy and programs of thematic scope, there shall be formed a National Public Health Committee.

(2) The formation of the Committee shall be as follows:

 (a)        Minister, Ministry of the Government of Nepal

responsible for the matters relating to health             -Chairperson

 (b)       State Minister/Assistant Minister, Ministry

of the Government of Nepal responsible for

 the matters relating to health                                                 -Member

  (c)        Member, National Planning Commission

(responsible the matters relating to health)                             -Member

  (d)       One person nominated by the Government of

Nepal from among the Vice-chancellors of

Academies of Health and Sciences                                        -Member

    (e)        Secretary, Ministry of the Government of

Nepal looking after the matters relating to industries             -Member

  (f)        Secretary, Ministry of the Government of

Nepal responsible for the matters relating

to finance                                                                                -Member

  (g)       Secretary, Ministry of the Government of

Nepal responsible for the matters relating to

agriculture                                                                               -Member

    (h)       Secretary, Ministry of the Government of

Nepal looking responsible for the matters relating to

drinking water and sanitation                                                 -Member

(i) Secretary, Ministry of the Government of

Nepal responsible for the matters relating to

home affairs                                                                            -Member

 (j)        Secretary, Ministry of the Government of

Nepal responsible for the matters relating to

physical infrastructures and transport                                     -Member

  (k)       Secretary, Ministry of the Government of

Nepal responsible for the matters relating to

women, children and elderly citizens                                                 -Member

  (l)        Secretary, Ministry of the Government of

Nepal responsible for the matters relating to

forest and environment                                                           -Member

   (m)      Secretary, Ministry of the Government of

Nepal responsible for the matters relating to

education                                                                                 -Member

    (n)       Secretary, Ministry of the Government of

Nepal responsible for the matters relating to

labor, employment and social security                                   -Member

   (o)       Secretary, Ministry of the Government of

Nepal responsible for the matters relating

to health                                                                                  -Member

   (p)       Chief Specialist, Ministry of the Government

of Nepal responsible for the matters relating

to health                                                                                  -Member

    (q)       One Chairperson nominated from

among the Councils related to health                                    -Member

   (r)        One person nominated by the Chairperson

from among health experts                                                     -Member

  (s)        Two persons including one woman nominated

by the Chairperson from among the directors of

private health institutions                                                       -Member

    (t)        One person nominated by the Chairperson from

among the office bearers of the organizations/

institutions related to the consumers’ welfare

protection                                                                                -Member

   (u)       Chief, Policy, Planning and Monitoring Division,

Ministry of the Government of Nepal responsible

 for the matters relating to health and population       -Member-Secretary

                        (3) The term of office of the members nominated pursuant to clauses (d), (q), (r) (s) and (t) of sub-section (2) shall be three years.

(4) The committee may invite other experts to the meeting as necessary.

(5) The meeting of the committee shall be convened at least twice a year.

(6) The Policy, Planning and Monitoring Division of the Ministry of the Government of Nepal responsible for the matters relating to health and population shall carry out the work of Secretariat for performance of the day to day business of the committee.

(7) The procedures of the committee shall be as determined by the committee itself.

  1. Functions, duties and powers of the committee: (1) The functions, duties and powers of the committee shall be as follows:

(a)        To guide, monitor and make policy suitable to the concept of the multi-sector dimensions of health relating to safety, protection and improvement of the health of citizen,

(b)       To adopt, or cause to be adopted, the health policy in all other policies to address comprehensive social determinants of health,

(c)        To determine multi-sector and priority based goal on proportional distribution in the service sector of health,

(d)       To manage effective coordination in the service provision of health,

(e)        To cooperate, coordinate and monitor to apply international policy, strategy and commitment related to public health in the national interest of Nepal,

(f)        To make recommendation to the Government of Nepal to control pesticides being used for various purposes, and to make necessary policy to mitigate road and vehicular accidents and prepare standards related to business health,

(g)        To make necessary recommendation to make provisions for the public health workers to promote the primary treatment and health education at schools of the Local Level,

(h)        To perform such other functions as assigned by the Government of Nepal,

(2) The committee may form sub-committees as necessary.

Chapter-4 Education to be Provided in Mother Tongue and Operation of Schools

 

  1. Provisions relating to mother tongue education: (1) Any citizen of every Nepali community residing in Nepal shall have the right to acquire education up to the basic level or secondary level in his or her own mother tongue.

Provided that such education shall be pursuant to the curriculum prescribed pursuant to the prevailing law.

(2) In the case of the education up to secondary level, such community may establish and operate separate school or teaching institute in order to provide education referred to in sub-section (1).

(3) The Government of Nepal may make arrangement to establish and operate schools or teaching institutes for the sake of providing mother tongue education.

(4) Notwithstanding anything contained in sub-section (2), Nepali citizens may be provided mother tongue education on any particular subject according to their demands in the educational institutes or public schools operated or granted by the Government of Nepal, Provincial Government or Local Level.

  1. To operate school or teaching institute: (1) The school or teaching institute referred to in sub-section (2) of Section 28 shall be operated and managed by the same community which has established it.

(2) Notwithstanding anything contained in sub-section (2), in order to operate such a teaching institute or school that provides mother tongue education, the Government of Nepal, Provincial Government and Local Level may provide a certain amount of money every year as grant pursuant to the request of such community.

(3) Provincial Government and Local Level may make additional arrangement with respect to the provision of mother tongue education according to local characteristics and necessity.

 

Chapter-5 Appropriation of Budget and Grant for Education

 

  1. Appropriation of budget and grant: (1) The Government of Nepal shall appropriate grant amount for the purpose of basic and secondary education every year, out of its budget, to every Local Level on the basis of the number of schools and students and the results achieved by the students.

(2) Provincial Government shall appropriate a certain amount of money as grant every year to every Local Level, out of its budget, for the purpose of education up to secondary level pursuant to the provincial law.

(3) The Government of Nepal or Provincial Government shall appropriate necessary grant amount pursuant to the Federal law or Provincial law for the teaching institutes operated by the Government of Nepal and Provincial Government themselves or to which they have provided grant.

(4) The Local Level shall appropriate necessary budget, out of its annual budget, for the purpose of providing education of the basic level and secondary level.

(5) While appropriating budget pursuant to sub-section (4), it shall be made so that public schools providing education of the basic level or secondary level and every school operated by the Local Level may receive the budget.

  1. To support by other person or institution: (1) Notwithstanding anything contained elsewhere in this Chapter, in addition to the Government of Nepal, Provincial Government and Local Level, any other person, organization, institution may also provide any kind of financial support, assistance or grant for a public school, public educational trust that provides education of the basic level or secondary level or to the school established and operated for non-profit motive.

(2) The support, assistance or amount of money referred to in sub-section (1) shall be provided through the Local Level or upon obtaining approval of the Local Level.

(3) The procedures and modes for providing support, assistance or amount pursuant to sub-section (2) shall be pursuant to the law.

Provided that, before receiving any support, assistance or amount from a foreign person, institution or government, except a non-Nepali resident, prior consent of the Ministry of Finance, the Government of Nepal, shall be obtained.

Chapter-6 Offence and Fine

 

  1. Offence and fine: (1) If a person does any of the following acts, he or she shall be deemed to have committed the offence under this Act:

(a)        To refuse to admit a child pursuant to sub-section (1) of Section 9 or not to provide written information pursuant to sub-section (4) of Section 9,

(b)        To expel a child pursuant to sub-section (1) of Section 10 or to prevent or deprive a child from acquiring or of the basic education or from taking examination pursuant to sub-section (2) of Section 10,

(c)        To refuse to make readmission pursuant to Section 11 or to refuse to give the transfer certificate pursuant to Section 13,

(d)       To do any act contrary to Section 16,

(e)        To do any act contrary to Section 27.

(2) If a person commits the offence referred to in sub-section (1), the guardian of the child concerned may make a petition to the Judicial Committee of the Local Level concerned within fifteen days from the commission of such offence.

Explanation: For the purposes of this Section, “Judicial Committee” means the Judicial Committee referred to in Article 217 of the Constitution of Nepal.

(3) If the offence referred to in sub-section (1) is committed, the Judicial Committee may fine the head teacher concerned as follows:

(a)        Up to five thousand rupees for the person who commits the offence referred to in clauses (a) and (c),

(b)        Up to three thousand rupees for the person who commits the offence referred to in clauses (b) and (d),

(c)        The amount equal to the claimed amount or fifty thousand rupees, whichever is the lesser for the person who commits the offence referred to in clause (e).

(4) If any amount has been recovered contrary to Section 27, such amount shall also be returned to the person concerned.

(5) Appeal may be made to the District Court concerned against a decision made by the Judicial Committee pursuant to sub-section (3) or (4).

 

Chapter-8 Offences and Punishment

  1. Offence: If any person commits any of the following acts, such a person shall be deemed to have committed the offence under this Act:

 (a)        To operate a health institution without obtaining the license pursuant to Section 22, and to operate blood transmission service without obtaining the license pursuant to Section 34.

 (b)        To refuse to provide health treatment service,

(c)        To treat the persons having mental health problem by committing the acts such as keeping them tied up or detaining in a cell,

(d)       To make refusal by a health institution to provide basic health service and emergency treatment available at the health institution,

(e)        To provide treatment service without obtaining the informed consent pursuant to Section 11,

(f)        Not to extend equal behavior to the service recipients in accordance with Section 12,

(g)        Not to maintain confidentiality pursuant to Section 14,

(h)        To make obstruction and disturbance to prevent the health worker or health institution from fulfilling the duty under this Act,

(i)         Not to provide an information by the concerned person to the health worker or health institution of the notice or information pursuant to this Act,

(j)         To provide health worker or service provider deliberately with the false information,

(k)        To pretend being another person in order to deceive the health worker or health institution,

(l)        Not to comply with this Act and the rules, standards, directives and procedure made under this Act,

(m)       To have adverse impact in public health due to the quality of food, water and air pursuant to Sections 39 and 40,

(n)        To make an advertisement contrary to Section 45,

(o)        To collect human biological sample and take it outside the country without obtaining the approval in accordance with the prevailing law,

(p)        To do any other act contrary to this Act, and the Rules, standards, directives and procedures made under this Act.

  1. Punishment: Punishment shall be imposed as follows for the offence referred to in Section 52:

(a)        If the offence referred to in clauses (a) and (o) is committed, a fine of one million rupees or imprisonment for a term not exceeding two years or both,

(b)        If the offence referred to in clauses (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m) and (p) is committed, a fine from twenty-five thousand up to fifty thousand rupees,

(c)        If the offence referred to in clause (c) is committed, fine up to fifty thousand rupees or imprisonment for a term not exceeding one year or both,

(d)       If the offence referred to in clause (n) is committed, a fine of ten thousand rupees is to be imposed on the person who broadcasts the advertisement.

  1. Investigating authority: The authority to carry out investigation and inquiry of the case deemed to be an offence under this Act shall be vested in the official designated by the Government of Nepal by a notification in the Nepal Gazette.
  2. Government of Nepal to be plaintiff: The Government of Nepal shall be the plaintiff of the cases under this Act.
  3. Authority to adjudicate cases and hear appeals: (1) The District Court shall have the power to originally adjudicate the case deemed to be an offence under this Act.

(2) A party who is not satisfied with the decision made by the District Court pursuant to sub-section (1) may file an appeal in the High Court.

  1. Compensation: (1) If the offence is held to have been committed under this Act, the adjudicating authority shall make an order to get appropriate compensation paid from the offender for the actual damage and loss caused to the affected party.

(2) Other provisions relating to the recovery of compensation shall be as prescribed.

Chapter-9 Miscellaneous

  1. To obtain approval of Ministry: (1) Approval of the Ministry shall be obtained in order to collect the human biological sample and before taking such sample outside the country.

(2) The Ministry may, for the purpose of sub-section (1), make and apply necessary standards and procedures.

  1. To maintain records: It shall be the duty of the chief of the concerned health institution to make arrangement to safely maintain the records of every service recipient, as prescribed, who receives service from the health institution.
  2. To submit report: (1) Each health institution shall submit the report to the body that issues the license every year as prescribed, by including the details of the service provided by it.

(2) Notwithstanding anything contained in sub-section (1), the concerned Province and Local Levels shall forward the integrated report  of the services provided by the health institutions in operation upon obtaining the license from the Province and Local Levels, on the basis of the report received from the health institutions pursuant to sub-section (1) to the Ministry.

(3) While forwarding the report pursuant to sub-section (2), the details of the programs relating to public health conducted by the Province and Local Levels, under the prevailing the, shall also be included.

(4) The Ministry may issue directives as necessary on the basis of the report received pursuant to sub-section (2).

  1. To be in accordance with prevailing law: The matters contained in this Act shall be governed by this Act and the matters not contained in this Act shall be in accordance with the prevailing law.
  2. Delegation of authority: The authorized official may delegate some of the powers conferred to him or her pursuant to this Act to any official as per necessity.
  3. Power to frame rules: The Government of Nepal may frame necessary rules in order to implement this Act.
  4. Power to make standards, directives or procedures: The Ministry may make necessary standards, directives or procedures subject to this Act or the rules framed under this Act.

Chapter-7 Miscellaneous Provisions

 

  1. Special rights of citizens with disabilities and Dalit citizens: (1) Citizens who are blind shall have the right to acquire free education through Braille script and who are deaf and citizens with voice and speech impairments shall have the right to acquire free education through sign language as prescribed.

(2) The Dalit citizens who have disabilities and are indigent shall have additional special rights pursuant to the prevailing law, in addition to the rights set forth in this Act, with respect to acquiring education.

(3) Special provisions shall be made for the children who are Dalit, have disabilities and are indigent economically, and who are out of schools, in order to get them admitted to the schools and give continuity in their learning.

  1. To operate model, specialized and mobile school with facilities: (1) The Government of Nepal, Provincial Government and Local Level may establish and operate a model school, specialized school or mobile school or similar other special kind of school.

(2) The school opened or operated pursuant to sub-section (1) shall be established with the permission of the Level where it has been opened.

(3) The school opened or operated pursuant to sub-section (1) shall fulfil the standards prescribed by the prevailing law.

  1. Provisions of monitoring, and monitoring indicators: (1) In order to carry out monitoring for the sake of implementation of this Act, a mechanism shall be constituted as prescribed.

(2) The Ministry of the Government of Nepal that is responsible the matters relating to education shall prepare the monitoring indicators for the implementation of the right to education as provided for in this Act.

(3) The monitoring indicators referred to in sub-section (1) shall be published for information of the public.

(4) The mechanism referred to in sub-section (1) shall measure as to whether implementation has been made according to the monitoring indicators.

(5) Other provisions relating to monitoring mechanism and indicators shall be as prescribed.

  1. To submit report: (1) Every Rural Municipal Executive or Municipal Executive shall submit a report every year to Rural Municipal Assembly or Municipal Assembly, along with the following details:

(a)        The number of public and private schools being operated in the Local Level concerned and the number of children studying at such schools,

(b)        The number of children admitted to schools up to the basic level,

(c)        The number of children who have completed education of the basic level upon being admitted,

(d)       The number of students who have left schools without completing education of the basic level in that year even upon being admitted,

(e)        The amount appropriated for education of the basic level and secondary level, and its source,

(f)        Other necessary matters.

(2) The report referred to in sub-section (1) shall be sent every year to the Ministry of the Government of Nepal that is responsible for the matter relating to education and the Ministry of the Provincial Government that is responsible for the matter relating to education.

  1. To provide details: (1) For the purposes of this Act, every Local Level shall keep updated details of mother tongue users, Dalits, persons with disabilities and economically indigent persons residing in its territorial jurisdiction.

(2) The details referred to in sub-section (1) shall be provided to the Ministry of the Government of Nepal that is responsible for the matter relating to education and the Ministry of Provincial Government that is responsible for the matter relating to education and the schools concerned.

  1. Partnership or collaboration to be made: (1) Necessary arrangement may be made so that partnership or cooperation among the schools and non-governmental organizations being operated pursuant to the prevailing law and the Local Level may be executed. For the sake of carrying out functions relating to the improvement in the school management, development of quality education and increasing learning achievement of the students,

(2) The implementation of the provisions relating to the partnership and cooperation pursuant to sub-section (1) shall be carried out pursuant to prevailing law.

  1. This Act to govern: The schools and teaching institutes in operation at the time of the commencement of this Act shall be deemed to have been established and operated pursuant to this Act.
  2. Power to frame Rules: The Government of Nepal may frame necessary Rules to implement this Act.
  3. Power to make standards: (1) The Ministry of the Government of Nepal responsible for the matter relating to education may make necessary standards subject to this Act and the Rules framed under this Act.

(2)        The standards made pursuant to sub-section (1) shall be made public.

The Privacy Act, 2075 (2018)

Date of Authentication

2075.6.2 (18 September 2018)

Act Number 14 of the year 2075 (2018)

An Act Made to Provide for Privacy

Preamble:

Whereas, it is expedient to make legal provisions on promoting dignified living standards by making provisions to ensure the right to privacy of the matters relating to body, residence, property, document, data, correspondence and character of every person, to manage the protection and safe use of personal information remained in any public body or institution, and to prevent encroachment on the privacy of every person;

Now, therefore be it enacted by the Federal Parliament.

Chapter-1 Preliminary

  1. Short title and commencement: (1) This Act may be cited as the “Privacy Act, 2075 (2018).”

(2) This Act shall come into force immediately.

  1. Definitions: Unless the subject or the context otherwise requires, in this Act,-

(a)       “Residence” means a house, rented room, apartment, room or place of residence where any person resides, and this term also includes a hotel, resort, lodge, guesthouse or camp room or any other place of similar nature where he or she stays to spend a night.

(b)        “Prescribed” or “as prescribed” means prescribed or as prescribed in the Rules framed under this Act.

(c)        “Personal information” means the following information related to any person:

(1)       His or her caste, ethnicity, birth, origin, religion, color or marital status,

(2)       His or her education or academic qualification,

(3)       His or her address, telephone or address of electronic letter (email),

(4)        His or her passport, citizenship certificate, national identity card number, driving license, voter identity card or details of identity card issued by a public body,

(5)        A letter sent or received by him or her to or from anybody mentioning personal information,

(6)        His or her thumb impressions, fingerprints, retina of eye, blood group or other biometric information,

(7)        His or her criminal background or description of the sentence imposed on him or her for a criminal offence or service of the sentence,

(8)        Matter as to what opinion or view has been expressed by a person who gives professional or expert opinion, in the process of any decision.

(d)       “Property” means a movable, immovable, physical or abstract, tangible or intangible property, and this term also includes intellectual property.

(e)        “Public body” means the following body:

(1)        The Government of Nepal, Provincial Government or Local Level or government office under the Government of Nepal, Provincial Government or Local Level,

(2)        A court, other judicial body, constitutional body or office thereunder,

(3)       A regulatory body or office thereunder,

(4)        A company, bank, committee having full or partial ownership or control of the Government of Nepal, Provincial Government or Local Level or commission, corporation, authority, incorporation, academy, board, center, council and other body corporate of similar nature established by the Government of Nepal, Provincial Government or Local Level pursuant to law.

(5)        A political party and organization registered under prevailing law,

(6)        A university, college, school, research center and other similar academic or educational institution that has been established or operated by the Government of Nepal, Provincial Government or Local Level or that has obtained full or partial grants from the Government of Nepal, Provincial Government or Local Level.

(7)        An institution operated with credit, grant or guarantee of the Government of Nepal, Provincial Government or Local Level.

(8)        An institution having full or partial ownership or control of the body mentioned in sub-clause (1), (2), (3) or (4).

(9)        Any other institution specified by the Government of Nepal as a public entity by publishing a notice in the Nepal Gazette

(f)        “Person holding public post” means a person holding any post of a public body upon being elected, nominated or appointed to such post.

(g)        “Body corporate” means an organization, company, bank, committee, cooperative association, federation or other body corporate of similar nature established under the prevailing law.

The Crime Victim Protection Act, 2075 (2018)

 

Date of Authentication:

 2075/06/02 (18 September 2018)

 

Act Number 22 of the year 2075

An Act Made to Provide for the Protection of the Crime Victims

Preamble:

Whereas, it is expedient to make necessary provisions on the protection of the rights and interests of the victims, by making provisions also for compensation to the victims for damage sustained as a result of an offence, and reducing adverse effects caused to the victims of crimes, for getting information related to the investigation and proceedings of the cases in which they have been victimized, for getting justice along with social rehabilitation and compensation pursuant to law, while ensuring the right of crime victims to justice conferred by the Constitution of Nepal, which remains as an integral part of the process of offender justice;

Now, therefore, be it enacted by the Federal Parliament.

 

 

Chapter-2 Privacy of Body and Family of Person

  1. Privacy of body and personal life of person: (1) The privacy of the matters relating to physical and mental condition of every person shall be inviolable.

(2) The matters of privacy of the body of any person shall be inviolable without the consent of the person concerned, except in cases of conducting his or her health examination, health treatment or emergency relief work.

(3) Every person shall have the right to maintain the privacy of the matters such as biological or biometric identity, gender identity, sexuality, sexual relation, conception or abortion, virginity, potency, impotency or physical illness related to his or her personal life.

(4) No person shall publish, or cause to be published, any matters referred to in sub-section (3) which are related to any person so as to affect, inflict or insult in the personal life of such a person, by writing, speaking, publishing or using electronic means or any other manner.

(5) Notwithstanding anything contained in this Section, the privacy of physical or mental condition or private life of a person may be disclosed on the following condition:

(a)        If it is a matter involving the consent of the person concerned,

(b)        If it is the matter already made public by the person concerned with his or her own will,

(c)        If it is the matter investigated in the course of any offence, by the investigating or prosecuting official,

(d)       If the matter related to sub-section (3) or physical condition or private life of a person has to be disclosed for obtaining any facility or concession, and he or she obtains or desires to obtain such facility or concession.

  1. To have family privacy: (1) Every person shall have the right to maintain family privacy for maintaining the family life or the family integrity.

(2) The matter related to mutual privacy that is known only between the husband and wife in the course of conjugal life shall be inviolable except in the cases where it is necessary in the context of the case running between the husband and wife.

  1. Not to search body: (1) Without obtaining the consent of any person, his or her body or anything with him or her or used by him or her shall not be searched.

(2) Notwithstanding anything contained in sub-section (1), in cases where it is necessary to carry out any security check under the prevailing law or to search any person in the course of investigation of a criminal offence, the authorized official or any person or security deputed for the purpose of security in accordance with his or her order may carry out search in accordance with law.

(3) The officials deputed for conducting security check pursuant to sub-section (2) shall have to retain with him or her the authority obtained for the security check, and show it before conducting search if the person concerned wants to see it.

(4) The security person deputed to follow the duty for regular or emergency security check at any public place, wearing the badge and uniform according to his or her post, shall be deemed to have had the authority for the security check.

  1. Privacy relating to reproductive health and pregnancy: The matter relating to reproductive health and pregnancy of every woman shall be inviolable and, without her consent, information of such matter shall not be given to anyone else or be made public.

Provided that, it shall not bar to hold discussion between the concerned specialists about such matter in the course of health treatment or providing information for the member of his or her undivided family and for his or her guardian, if he or she has not attained the age of eighteen years or is of unsound mind.

Chapter-3 Privacy Relating to Residence

  1. To have privacy of residence: (1) Every person shall have the right to privacy of his or her residence.

(2) Except for searching under the law by the authorized official or in accordance with his or her order, entering, or causing other to enter into, the residence of any person, or searching or getting it searched shall be forbidden.

(3) While entering pursuant to sub-section (2), entering or causing other to enter into, or searching or getting it searched, by breaching the privacy of the personal life of the person concerned or member of his or her family, shall be forbidden.

(4) When any person is arrested outside his or her residence by the authorized official or pursuant to order of such official, searching or causing his or her residence to be searched, simply because he is arrested, shall be forbidden.

(5) If there is a reasonable cause to search his or her residence as well when any person is arrested pursuant to sub-section (4), his or her residence may be searched for that purpose by obtaining a separate order of the authorized official pursuant to law.

(6) Notwithstanding anything contained elsewhere in this Section, for the purpose of carrying out disaster management or emergency rescue, any person’s residence may be entered into.

(7) Other provisions relating to maintaining privacy of the residence and search or investigation shall be in accordance with the prevailing law.

  1. To provide notice while entering into residence: (1) If anybody’s residence is to be searched pursuant to Section 7 in the course of any criminal offence, he or she shall have to be provided with a written notice setting out the purpose for so entering into the residence thereof.

(2) The conditions and procedures under the prevailing law shall have to be fulfilled while entering into the residence of any person pursuant to sub-section (1).

Provided that if the accused person is likely to flee or escape or evidence is likely to be destroyed if search is not conducted immediately, it may be entered into by maintaining  the record of such matter.

  1. Not to install CCTV camera in the residence: No person shall install, or cause to be installed, CCTV camera at the residence of any person without his or her consent, or for collecting personal information related to the user of such residence.

Chapter-1 Preliminary

 

  1. Short title and commencement: (1) This Act may be cited as the “Crime Victim Protection Act, 2075 (2018).”

(2)        This Act shall commence immediately.

  1. Definitions: Unless the subject or the context otherwise requires, in this Act, –

(a)        “Court” means a court that is authorized by the prevailing law to try and settle any offence, and this also includes such other judicial authority or body authorized by law to try and settle any specific type of case.

(b)        “Offence” means an offender offence in which the government is plaintiff pursuant to law, and the victim has died or has to bear damage.

(c)        “Offender” means a person who is convicted by the court of an offence.

(d)       “Fund” means the Victim Relief Fund established pursuant to law.

(e)        “Prescribed” or “as prescribed” means prescribed or as prescribed in the rules framed under this Act.

(f)        “Victim of second grade” means a person who has not been involved in the offence that has been committed or is being committed against the victim of first grade but who has to bear damage because of being an eyewitness of such offence, and this expression also includes the guardian of the minor victim of first grade who has not been involved in the offence but who has to bear damage because of having information about, or being an eyewitness of, the offence, and any of the following persons who have to bear damage because of having knowledge as to the offence committed against the victim of first grade:

(1)        Guardian of the victim of first grade,

(2)        Where the victim of first grade is a minor, and

(3)        Where the person who has to bear such damage is not involved in the offence.

(g)        “Minor” means a person who has not attained the age of eighteen years.

(h)        “Victim of first grade” means a person who has died or has sustained damage as a direct result of an offence that has been committed against the victim, irrespective of whether the perpetrator does not have to bear criminal liability on the ground of his or her age, mental unsoundness, diplomatic immunity or position or whether the identity of the perpetrator remains untraced or whether charge has not been made against the perpetrator or whether the case related to the offence has been withdrawn or whether the sentence imposed on the offender is pardoned or whether the perpetrator has not been convicted of the offence or irrespective of the family relation of the perpetrator with the victim, and this phrase also includes a person who has not been involved in the offence but has died or sustained damage in any of the following circumstances:

(1)        While preventing the person who is committing the offence from committing it,

(2)        While extending reasonable support and rescuing with the purpose of saving any person where an offence is being committed against such a person,

(3)        While trying to arrest the person who is committing or has committed the offence or extending support to the competent authority in the course of arresting the suspect, accused or offender.

(i)         “Family victim” means the victim’s mother, father, husband, wife living in the undivided family of the victim or other member of the undivided family dependent on the victim, who is not involved in the offence against the victim of first grade who has died as a direct result of the offence.

(j)         “Victim” means an individual who is the victim of first grade, victim of second grade and family victim.

(k)        “Victim Protection Suggestion Committee” means the Victim Protection Suggestion Committee referred to in Section 44.

(l)         “Guardian” means the guardian of a victim who remains as such or is appointed pursuant to the prevailing law.

(m)       “Damage” means the following damage caused to the victim as a direct result of the offence:

(1)        Grievous hurt,

(2)        Pregnancy occurred due to rape,

(3)        Contracting any communicable disease recognized by medical sciences that causes adverse impact on the physical or mental health or life of the victim,

(4)        Mental anxiety, emotional trauma or damage identified by the medical doctor,

(5)        Destruction of physical, intellectual, sexual or reproductive capacity or serious damage caused to such capacity,

(6)        Adverse impact caused on the social, cultural or family prestige of the victim due to rape,

(7)        Psychological or psychiatric damage,

Explanation: For the purposes of this sub-clause, the term “psychological or psychiatric damage” means the effect detected by the medical test, which is not recovered or reduced in short period and which inflicts negative effect upon the health of the victim.

(8)        Financial or physical damage,

(9)        Making physical beauty of the victim ugly.

  1. Not to be deemed victim: (1) Notwithstanding anything contained elsewhere in this Act, where a person has sustained damage or died in the following circumstance, the person who has so sustained damage or died or his or her family member shall not be deemed to be a victim for the purposes of this Act:

(a)        While doing any act in the course of saving the body, life, property or chastity of his or her own or anyone else under the private defense pursuant to the prevailing law,

(b)        While doing any act by a security employee who has been deputed or deployed by the order of the competent authority in the course of performing his or her duties pursuant to the prevailing law,

(c)        While doing any act by the investigating authority having authority to investigate pursuant to the prevailing law, in the course of making investigation, subject to his or her jurisdiction,

(d)       Any act done in a situation where the criminal liability need be borne pursuant to the prevailing law,

Provided that even if the criminal liability of the perpetrator need not be borne as a result of the perpetrator’s age, mental unsoundness, diplomatic immunity or immunity enjoyable on the basis of position, it shall be deemed, for the purposes of this Act, that such a person has committed the offence, and the concerned person shall be deemed to be a victim due to the offence.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall prevent the Government of Nepal from providing relief to a person who has sustained damage or died due to the circumstance set forth in that sub-section.

 

 

 

Chapter-4 Privacy Relating to Property

  1. To have privacy of property: (1) Every person shall have the right to keep his or her property and details relating to such property confidential.

(2) No person shall enter, in an unauthorized manner, into other’s house, land, vehicle or other property without permission or consent of the owner of such property.

(3) The public body or body corporate or any employee working in such a body that keeps the details relating to the property of a person or that can have information thereof shall not inform anyone else, or publish or cause the details of property of any person published in any way, without the consent of the concerned person.

(4) Notwithstanding anything contained in sub-section (1) or (3), when the details of property is demanded in accordance with the order of authorized official in the course of investigation of any offence, or when demand is made by the court in the context of the case filed against any person on the same issue, the concerned agency, body corporate or official that maintains the records of the details of property shall provide such record.

Chapter-5 Privacy Relating to Document

  1. To have privacy of document: (1) Every person shall have the right to privacy of the personal document related to him or her.

(2) For the purpose of sub-section (1), the following documents shall be deemed to be the personal documents of the concerned person:

 (a)       Certificate relating to educational qualification,

(b)        Medical history, certificate or health examination report,

(c)        Citizenship certificate, passport, voter identity card, driving license or other documents of such nature revealing identity,

(d)       Bank account in a bank or the details of amount in such account,

(e)        Cheque, draft, debit card, credit card or bank statement or other negotiable instrument related to banking and financial transaction,

(f)        Biological or biometric data and thumb impression,

(g)        Land ownership certificate related to immovable property or other document relating to ownership of land,

(h)        Vehicle ownership card (Blue Book) or document relating to the ownership of other property,

(i)         Securities or details related thereto,

(j)         Identity card of the Employee Provident Fund, pension card or other document of similar nature,

(k)        Other documents as prescribed.

(3)        No person shall publish, or cause to be published, personal document of anyone held in a public body pursuant to sub-section (2).

(4) Notwithstanding anything contained in sub-section (1) or (3), personal document or any of its details may be published, or caused to be published, or any details thereof may be made subject of study, research or examination on the following conditions:

(a)        If there is consent of the concerned person,

(b)        If the identity card revealing the identity of any person is required for the purpose of using public service,

(c)        If order is issued under the law by the court or authorized official in the course of any case,

(d)       If any order is so issued by the authorized official in the course of investigation and prosecution of a criminal offence.

Chapter-2 Rights and Duties of the Victims in Criminal Justice Process

 

  1. Right to get fair treatment: The victim shall have the right to enjoy decent, fair, dignified and respectful treatment during the criminal justice process.
  2. Right against discrimination: No discrimination shall be made on the ground of the victim’s religion, colour, gender, caste, ethnicity, origin, language, marital status, age, physical or mental unsoundness, disability or ideology or similar other ground.

Provided that where the particular need of the victim who is a minor, senior citizen or a person with physical or mental disability is to be considered in the course of criminal justice process, it shall not be deemed to prevent from according a special treatment to such a victim as far as possible.

  1. Right to privacy: (1) The victim shall have the right to privacy in the course of investigation, enquiry, prosecution and court proceedings of the following offences:

(a)        Rape,

(b)        Incest,

(c)        Human trafficking,

(d)       Sexual harassment,

(e)        Such other criminal offence as prescribed by the Government of Nepal by publishing a notice in the Nepal Gazette.

(2)  No person shall disclose the identity of the victim in any manner, in the offences referred to in sub-section (1).

(3) Where it is required to have any deed executed by, take statement or deposition of, the victim in the course of investigation, enquiry and court proceedings of the offences referred to in sub-section (1), it shall be done as follows, if the victim so desires:

(a)        By presenting the victim, without disclosing his or her identity,

(b)        By making the victim change his or her actual voice,

(c)        By using the audio-visual dialogue technology in such a way that the accused cannot see and hear,

(d)       By making provision so that the accused cannot see or her or can only hear.

  1. Right to information relating to investigation: (1) Where the victim so demands, the investigating authority or body shall provide him or her with information on the following matters as soon as possible:

(a)     Medical, psychological, psychiatric, social, legal or any other service or counseling to be received by the victim pursuant to this Act or the prevailing law,

(b)     Name and full address of the prosecuting body,

(c)     Name, office and telephone number of the investigation authority,

(d)    Progress report of investigation and enquiry,

(e)     Name, age, address and complexion of the suspect,

(f)     Where the suspect is arrested, description thereof,

(g)     Matters expressed in relation to the offence by the suspect or any other person before the investigating authority,

(h)     Where the suspect has absconded from the custody of the investigating authority or has been arrested again, description thereof,

(i)      Where the investigating authority has released a person remanded in custody or arrested in the course of investigation, upon considering that it is not necessary to keep that person in custody, description,

(j)      General information about the investigation and enquiry processes to be carried out with respect to the offence pursuant to the prevailing law.

(2) Notwithstanding anything contained in clauses (d), (e), (f), (g) and (h) of sub-section (1), in cases where it is likely to adversely affect the investigation into the offence or to pose threat to body, life and property of the suspect or any person associated with him or her if such information is provided to the victim, the investigating authority shall not be compelled to provide such information to the victim, and the authority shall give information thereof, along the reasons why information could not be so provided, to the victim.

  1. Right to information relating to prosecution: The prosecuting body or authority shall provide the victim with the following information as to the offence as soon as possible if the victim so demands:

(a)        Where decision has been made not to institute the case, the ground and reason for making such decision not to institute the case,

(b)        Where decision has been made to institute the case against any person but not to institute the case in the case of any person, the name, surname and address of the person against whom the decision has been made not to institute the case, and the ground and reason for making decision not to so institute the case,

(c)        Where decision is made to institute the case, a certified         copy of the charge-sheet,

(d)       General information relating to the court proceedings that take place pursuant to the prevailing law,

(d)       Where any additional claim has been made pursuant to the prevailing law with respect to the person against whom the case has been instituted or the person against whom the case has not been instituted for the time being, description thereof and the order made by the case trying authority in that respect.

(e)        Where the victim is also an eyewitness of the offence, information relating to the role to be played by him or her as a witness,

(f)        Where the accused who has absconded at the time of filing the charge-sheet is arrested in pursuance of the order of the case trying authority or voluntarily appears, description thereof,

(g)        Where the Government of Nepal has decided to withdraw the case filed in the court in relation the offence, description thereof.

  1. Right to information relating to judicial proceedings: The prosecuting body or authority or court or the concerned body shall provide the victim with the following information as soon as possible if the victim so demands:

(a)        Where the accused has to remain in detention for trial, description thereof,

(b)        Where the accused is not required to remain in detention for trial or the accused wo has been detained is released from detention, description thereof,

(c)        Date, venue and time of hearing to be held by the court,

(d)       Where the accused has made an application that he or she be released on bail, guarantee or on the condition of making appearance on the appointed date pursuant to the prevailing law, information related thereto and the content of the order made on such application,

(e)        Description of the terms and conditions set by the case trying authority while releasing the accused on bail, guarantee or on the condition of making appearance on the appointed date or for the safety of the victim or close relative of the victim,

(f)        Where the accused has filed a petition to the appellate level against the order made by the court of first instance pursuant to the prevailing law that he or she should be released on bail, guarantee or on the condition of making appearance on the appointed date, the notice of the petition and description of the order made on such a petition,

(g)        Where the accused held in detention for trial escapes from the detention has been rearrested or voluntarily appears, description thereof,

(h)        Where the accused or offender has been released from detention or prison on the condition of supervision, the conditions of supervision, and where such conditions are altered, the details relating to the altered conditions and the date on which such alterations come into force,

(i)         Whether the accused or offender released from detention on the condition of supervision has complied with the conditions of supervision or not,

(j)         Where the accused or offender has been transferred from the prison pursuant to the prevailing law, description relating thereto,

(k)        The punishment imposed on the offender and in the case of the sentence of imprisonment, the period when the service of the imprisonment completes,

(l)         Where the offender has absconded prior to the service of the sentence of imprisonment or has been rearrested, description thereof,

(m)       Where the punishment sentenced to the offender is pardoned, postponed, charged or reduced or where the offender gets clemency from the punishment under any legal provision prior to the service of the sentence of imprisonment, description thereof,

(n)        Where the perpetrator against whom the case has not been instituted or who has not been sent to prison or who has been released from detention on the condition of remaining under supervision pursuant to the prevailing law violates the terms and conditions of supervision, the body to which the victim may make a complaint against it and the manner of making such a complaint,

(o)        Name and address of the prison where the offender is serving the sentence,

(p)        Where the offender has got probation, parole or community service or open prison or any other facility of similar type, description relating to this,

(q)        Whether the Government of Nepal has made an appeal or not against the decision made in relation to the offence,

(r)        Where order has been made to summon the presence of the respondent on the appeal, if any, made by the defendant against the judgment, description thereof,

(s)        Decision of the appellate level on the appeal made against the judgment, and its consequence,

(t)        Where the offender has been put under supervision and an application is made by the offender or anyone else to change the terms and conditions of supervision or to revoke the order of supervision pursuant to the prevailing law, the decision made on that application,

(u)        Where the accused or offender has died while in detention or prison, description thereof,

(v)        Where the Government of Nepal sends back a foreign accused or offender out of the territory of the State of Nepal pursuant to the prevailing law or deports him or her to a foreign state or government, description thereof.

  1. Right to become safe: The victim shall have the right to become safe from attack, damage, fears, intimidation or threat likely to be made or exerted by the suspect, accused, offender or person related to him or her or the witness of the accused against the victim or close relative of the victim and person dependent on the victim.
  2. Right to express opinion: (1) The victim shall be entitled to express his or her opinion before the concerned authority on the following matters:

(a)        While making a charge against the suspect for the offence concerned,

(b)        Where it is required to make decision for not instituting the case in relation to the suspect,

(c)        Where it is required to make agreement with the accused by way of plea bargaining as to the charge pursuant to the prevailing law,

(e)        Where request is to be made to the case trying authority for a clemency in the punishment imposable pursuant to the prevailing law,

(f)        Where additional claim is to be made to the charge-sheet filed before the case trying authority pursuant to the prevailing law,

(g)        Where a pre-sentencing report is to be prepared before specification of the sentence for the offender pursuant to the prevailing law,

(h)        While specifying sentence for the offender pursuant to the prevailing law,

(i)         Where investigation is to be carried out pursuant to the prevailing law as to whether the accused has mental or physical capacity to commit the offence,

(j)         Where decision is to be made to send him or her to the service of diversion program in the case of the accused or offender,

(k)        Where decision is to be made to provide probation, parole, suspended sentence, open prison, community service or any other service of similar type to the offender pursuant to the prevailing law,

(l)         While conducting hearing as to whether or not consent is to be granted for withdrawing the case related to the offence that is sub judice in the court pursuant to the prevailing law.

(2)        For expressing an opinion pursuant to sub-section (1), the concerned authority shall provide the victim with a reasonable time.

  1. Right to appoint legal practitioner: The victim may appoint a separate legal practitioner in the criminal justice process if he or she so wishes.
  2. Right of attendance and participation in hearing: (1) Except as otherwise ordered by the court, the victim shall have the right to attend and put forward his or her opinion in the proceedings relating to hearing by the court in relation to the offence.

Provided that where the victim is also a witness of the case, the court may prevent him or her from attending the particular proceeding until he or she makes deposition as the witness.

(2)        The court shall make order or decision, also upon considering the statement expressed by the victim pursuant to sub-section (1).

  1. Right to stay in separate chamber in the course of hearing: (1) In the course of the hearing of the offence, the court may provide a separate chamber for the victim so that he or she can stay separately from the accused, person related to the accused and witness of the accused.

(2)        Where it is not possible and practical to provide a separate chamber pursuant to sub-section (1), the court shall make necessary arrangement for the safety and interest of the victim so that the accused, person related to the accused and witness of the accused cannot contact the victim, except as otherwise ordered by the court.

  1. Right to have property returned: (1) The concerned investigating authority shall return the property of the victim taken under control in the course of investigation or for evidence, immediately after the completion of investigation.

(2)        Where the property taken under control pursuant to sub-section (1) is to be submitted to the court for evidence or there is a dispute as to the ownership or possession of the property, the property shall not be returned before the dispute is settled.

(3)        Notwithstanding anything contained in sub-section (2), the court may, if it so thinks necessary, make an order to return such property before the dispute is settled.

  1. To hold discussion as to the case related to offence: In the following circumstances, the court may, with the consent of both the victim and the accused, hold discussion between the victim and the accused on any matter related to the offence:

(a)        Where the court is satisfied that such discussion would assist in the settlement of the dispute,

(b)        Where the discussion is held under the supervision of the court,

(a)        Where holding discussion is not prejudicial to public interest and justice.

  1. Right to make written application: (1) Where the Government of Nepal has the right to make application or appeal against any order or decision of the court if it is not satisfied with such order of decision, the victim may make a written application to the concerned body or authority, requesting that application or appeal be made against that order or decision.

(2) The application referred to in sub-section (1) has to be made within fifteen days from the date of receipt of information of such an order or decision.

(3) The concerned body or authority that has the right to make application or appeal against the decision, order or decision referred to in sub-section (1) shall make decision by considering such an application.

(4) Information of the decision referred to in sub-section (3) shall be given to the victim.

  1. Right to get information as to compensation: (1) Where the victim is entitled to obtain compensation pursuant to this Act or other prevailing law and the victim seeks information with respect to it, the prosecuting authority shall give the victim information about the action required to be taken in order to obtain compensation.

(2) Where the prosecuting authority has the authority to take action relating to compensation on behalf of the victim pursuant to the prevailing law, the prosecuting authority shall, at the request by the victim, take such necessary action as to be taken on behalf of the victim.

  1. Right of compensation and social rehabilitation: (1) The victim shall have the right to obtain compensation for the damage he or she has sustained, pursuant to this Act.

(2) For the social rehabilitation of the victim, the Government of Nepal, Provincial Government and Local Level may, with mutual coordination, conduct necessary plan and program based on the available resources and means.

  1. Right to make application or appeal: (1) Where the concerned victim is not satisfied with the order or decision made by the court on any offence, the victim may make application or appeal if such application or appeal can be made against such order or decision pursuant to the prevailing law, setting out the ground and reason.

(2) Where no period is specified in the concerned law for making the application or appeal referred to in sub-section (1), such application or appeal has to be made within fifteen days from the date of receipt of information of the order or decision.

(3) The concerned authority has to make decision upon considering the ground and reason mentioned in the application referred to in sub-section (1), and give information of such decision to the applicant as well.

  1. Duties of the victim: For the purposes of this Act, the duties of the victim shall be as follows:

(a)        To make or give inform or notice as to the offence on time to the competent body or authority pursuant to the prevailing law,

(b)        To assist the investigating or prosecuting authority in the course of investigation and prosecution of the offence,

(c)        To refrain from failing to appear before the investigating authority or court in order to save the person involved in the offence, or to refrain from making statement, deposition or submitting any evidence for that purpose even upon being in appearance,

(d)       To provide his or her own real name, surname, address, telephone number, email address and provide information of the change, if any, made therein, as soon as possible.

  1. To respect the right: The authorities who are involved in the process of investigation, prosecution, enquiry of the offence and dispensation of justice shall pay proper attention to respecting and implementing the rights of the victim conferred pursuant to this Act and the prevailing Nepal law.
  2. Application may be made for the enforcement of rights: (1) For the enforcement of the rights conferred by this Chapter, the victim may make an application to High Court concerned.

(2) Where it appears, from the application made pursuant to sub-section (1), that the right of the victim has been encroached or infringed, the High Court may issue an appropriate order for the enforcement of such right.

(3) While issuing an order pursuant to sub-section (2), the High Court may write to the concerned body or authority to take departmental action against the official who has deliberately encroached, infringed or curtailed the rights of the victim, pursuant to the prevailing Nepal law relating to the conditions of his or her service.

(4) Where a correspondence is received pursuant to sub-section (3), the concerned authority shall take departmental action against such official pursuant to the prevailing law.

  1. Action not be invalid: Any decision, order or act already made or done pursuant to the prevailing law, this Act or the Rules framed under this Act shall not be void or invalid for the sole reason that the rights of the victim could not be enjoyed by the victim or have been violated or rejected.

 

 

Chapter-6 Privacy Relating to Data

  1. To have privacy of data: (1) Every person shall have the right to keep the personal data or details related to him or her confidential.

(2)        While collecting personal or family data of any person, his or her consent shall be obtained.

(3)        The data collected by a public body or body corporate upon obtaining the consent of the concerned person shall be used only for the purpose for which such data have been collected.

Provided that if any data are demanded for the national security or peace and order, it shall not be deemed to bar to provide such data in accordance with the prevailing law.

(4)        No person shall, without obtaining the consent of another person, provide the following data related to that person to anyone else or publish, or cause to be published, such data:

(a)        Details relating to health examination,

(b)        Details relating to property and income generation,

(c)        Details relating to employment,

(d)       Details relating to family matters,

(e)        Biometric details and thumb impression,

(f)        Signature or electronic signature,

(g)        Details relating to political affiliation and election,

(h)        Details relating to business or transaction.

(5)        Notwithstanding anything contained in sub-section (4), in cases where it is necessary to provide any personal data or details to the court or the agency or official authorized under law in the course of investigation of any criminal offence, such data or details shall be provided.

(6)        Notwithstanding anything contained in sub-section (4), if there arises a question as to the issues such as age, qualification, character, sexuality, disability of any person, and the authorized official so demands, the concerned person shall provide such details or documents.

Chapter-7 Privacy Relating to Correspondence

  1. To have privacy of correspondence: (1) Every person shall have the right to maintain privacy of his or her letters, correspondence or electronic letters (emails) or the dialogue transmitted through electronic means or other correspondence of similar nature.

(2)        No person shall, in an unauthorized manner, read, see, provide to anyone else, publish, broadcast, or otherwise make public the letters, correspondence or electronic letters (emails) or dialogue transmitted by electronic means or other correspondence of similar nature referred to in sub-section (1).

(3)        Notwithstanding anything contained in sub-section (2), the letters, correspondence or electronic letters (emails) or dialogue to be transmitted through electronic means or other correspondence of similar nature may be provided, or cause to be provided with the consent of the concerned person or by the order of the authorized official in the course of the investigation of any criminal offence.

  1. Not to open letters: (1) Except with the consent of the person concerned, or the order issued under the prevailing law by any competent authority in the course of the investigation of any criminal offence, no one shall open, or cause to be opened, personal letters of such person.

(2)        No person shall open, see or forward the electronic letters (emails) of other person.

Chapter-8 Privacy Relating to Character

  1. To have privacy of character: (1) Every person shall have the right to maintain privacy of his or her character, personal conduct and behavior.

(2)        Except in the case of taking action under law by inquiring into any question that is raised regarding the character, conduct or behavior of any person, no person shall make any comments on the character of that person.

(3)        No person shall do any kind of act or action so as to affect the character of any person, defame or insult him or her, harm his or her self-esteem or affect in his or her family life, or publish, or cause to be published, any matter relating to his or her conduct or behavior.

  1. Not to take or sell photograph: (1) No person shall take photograph of any person without his or her consent so as to damage his or her character or social prestige, or make another picture by putting picture of other person together with his or her picture by any way with the intention to defame him or her or to make another picture by mixing some part of the picture of one person with another part of the picture of another person, or publish or cause to be published or made public the same.

(2)        Notwithstanding anything contained in sub-section (1), if the picture of another person in the same place also happens to be taken by anybody while taking the picture of any public place or any person, it shall not be deemed to be the offence.

Provided that the picture happened to be so taken also shall not be used is contrary to sub-section (1).

(3)        No person shall publish, disseminate, buy, sell or publish the picture of any person that has been taken without obtaining his or her consent with the intention to annoy, distress or take any improper advantage or get profit by making commercial use of the picture, or cause such act to be done.

  1. Not to make the person under investigation public: Until the charge sheet has been filed in the concerned body regarding the offence of which any person under investigation in accordance with the law has been accused, the authorized official shall not make him or her public in any manner.

Provided that it shall not bar to publish the name of such accused person and detail or information of the charge against him or her.

  1. Not to disclose confidential matter: If any person has obtained any matter relating to the conduct of anyone from any other person in the course of his or her professional duty, that person shall not disclose such matter to anyone except where the concerned person has so consented or order has been made by the authorized official to that effect.

Chapter-3 Victim Impact Report

 

  1. Victim impact report may be submitted: (1) The victim may, if he or she so desires, submit a victim impact report to the prosecuting authority in such format and setting out such descriptions as prescribed, mentioning the damage or impact directly caused to or upon him or her from the offence, prior to the filing of the charge sheet of the offence in the court.

(2) Where the victim himself or herself is not able to submit the report referred to in sub-section (1) because of the victim being a minor or a person who needs guardianship legally or for any other reasonable reason, his or her guardian or the representative under law may submit such a report on behalf of the victim.

(3) Notwithstanding anything contained in sub-section (1), where the victim is not able to submit the victim impact report prior to the filing of the charge sheet in the court, due to a force majeure event, such a report, such a report, accompanied by the evidence of the occurrence of such an event, may be submitted to the authority filing the charge sheet within one month from the date on of filing of the charge sheet in the court.

(4) Where the victim wishes to keep confidential the victim impact report referred to in sub-section (1) or (2), he or she shall also set out in the report the content that he or she intends to keep confidential and the reason for it.

(5) The prosecuting authority shall submit to the concerned court the victim impact report submitted pursuant to sub-section (1) along with the charge sheet, and the victim impact report submitted pursuant to sub-section (3), within three days from the date of receipt.

  1. Duplicate copy may be demanded: (1) The accused or offender who desires to receive a duplicate copy of the victim impact report submitted to the court pursuant to sub-section (5) of Section 25 may get the duplicate copy of such a report from the court.

(2) Notwithstanding anything contained in sub-section (1), the court may refuse to issue a duplicate copy of the victim impact report in following conditions:

(a)        Where the accused is absconding,

(b)        Where the issuance of the duplicate copy would be prejudicial to the safety and privacy of the victim,

(c)        Where the victim desires to keep the victim impact report confidential.

  1. Victim impact report may be taken as the basis: (1) The court may also take the victim impact report as the basis while determining the sentence for the offender.

(2) Notwithstanding anything contained in sub-section (1), while determining the sentence punishment, the court shall not take as the basis that part of which duplicate copy has been refused to be issued or that part of the report which has been kept confidential.

  1. Not to make presumption that less damage has been caused from the offence: No presumption shall, by the sole reason that the victim has not submitted the victim impact report pursuant to this Chapter, be made that less damage or impact has been caused from the offence to or upon the victim.

 

 

 

Chapter-9 Electronic Means and Privacy

  1. To have privacy of electronic means: (1) Every person shall have the right to maintain privacy of the matter relating to any of his or her personal information, document, correspondence, data or character that remained in electronic means.

(2)        No one shall obtain the notice, information, correspondence of any person remained in electronic means in unauthorized manner, violate or provide its privacy for anybody in unauthorized manner.

(3)        Except for the consent given by the concerned person or order issued, under law, by authorized official, no one shall listen to any dialogue or talks held between two or more than two persons through electronic means, or mark or record the sound of such talks by making use of any mechanical device.

Provided that in the case of a speech or statement made publicly, the provision of this sub-section shall not be applicable.

(4)        Notwithstanding anything contained in sub-section (2) or (3), any notice, information or correspondence may be listened to, marked or recorded, or cause to be listened to, marked or recorded with the consent of the concerned person or order of the authorized official.

(5)        Other provisions relating to the privacy of electronic notice and data shall be as prescribed.

  1. Relating to installing CCTV camera at public place: (1) If it is necessary to install CCTV camera at any public place, such camera may be installed, or caused to be installed, at a place other than the toilet, bathroom or changing room.

(2) Provision shall be made to give a notice of such camera installed at the place where the camera has been installed pursuant to sub-section (1) so that all can see and be informed.

(3) The provisions relating to the installation of the CCTV camera at any place shall be as prescribed.

  1. Not to make surveillance or espionage: In order to make surveillance or espionage of the residence of any person or any office, or for the purpose of obtaining anything confidential pursuant to this Act, no electronic means, photography or method may be used.
  2. Not to use drone: No drone of any kind or similar kind of other device shall be used or no act shall be done with the purpose of obtaining any secret information of any public body, archaeologically important place, building of security agency, protected zone or zone of mine or mineral or at the residence of any person, without permission of the authorized official or such a person, except in border area or public place of the country.

Chapter-10 Collection and Protection of Personal Information

  1. Not to collect personal information except in accordance with law: (1) No one except the official authorized under law or the person permitted by such official shall collect, store, protect, analyze, process or publish the personal information of any person.

(2) Notwithstanding anything contained in sub-section (1), information provided by the concerned person may be collected after obtaining his or her consent for the purpose of conducting any study, research or collection of public opinion.

(3) While collecting information pursuant to sub-section (2), it shall not be collected without fully informing him or her regarding the purpose for which the information is collected.

Explanation: When the notice about collecting data is broadcast or published through the media of mass communication by addressing the general public, such notice shall be deemed to have provided information for the purposes of this Section.

(4) While collecting information pursuant to sub-section (2), the following matters shall be clearly set out:

(a)        Time of collecting information,

(b)        Content of information,

(c)        Nature of information,

(d)       Objective of collecting information,

(e)        Method and process of testing information,

(f)        Certainty of the matter of maintaining privacy of the collected information,

(g)        Matters including the protection of the collected information.

(5) While collecting information of any person, the official authorized for collecting information pursuant to law shall have to collect it by obtaining information from the concerned person.

(6) Notwithstanding anything contained in sub-section (5), the following person may provide the information on behalf of the following person:

(a)        In the case of the person who has not attained to the age of eighteen years or who is of unsound mind, his or her guardian or curator, provided there will be no harm to him or her when such information is so provided.

(b)        In the case of the other person, the attorney or representative authorized by him or her.

(7) Except in the following circumstance, the official authorized pursuant to sub-section (1) shall not collect personal information:

(a)       If the personal information has been collected by such official using authority under the same law under which it is collected,

(b)        If there is provision for collecting such information by such official under the prevailing law,

(c)        If it is collected in the course of investigation, prosecution of criminal offence or action under the court proceeding or enforcement of law,

(d)       If the person regarding whom any body corporate or public body collects information, holds or is about to hold any post of such a body, or if such information remain under the approved programs of such a body corporate or body.

(8) Other provisions relating to the collection, processing, analysis and use of personal information shall be as prescribed.

  1. Not to deem to be personal information: Except as otherwise provided in the prevailing law, the following information regarding the person holding a public post shall not be deemed to be his or her personal information:

(a)        The matter as to of which public body he or she is an incumbent official,

(b)        His or her post and office address, telephone number or address of electronic letter (email) through which contact may be established,

(c)        Name of the person signing any letter or document issued or written by a public body, and his or her post,

(d)       Description of job to be performed by him or her and its nature,

(e)        Matters relating to the conditions of his or her service.

  1. Protection of collected information: (1) The personal information that has been collected by any public body or remained under the responsibility or control of such a body shall be protected by such body.

(2) For the purpose of sub-section (1), the public body shall have to make appropriate arrangement against unauthorized access likely to occur to personal information, or against the possible risk of unauthorized use, change, disclosure, publication or transmission of such information.

(3) Notwithstanding anything contained elsewhere in this Section, the public body may disclose or get any personal information disclosed under the prevailing law.

  1. Not to use personal information without consent: (1) Except in the following circumstances, the personal information collected by or remained under the responsibility or control of a public body or body corporate shall not be used or given to any one without the consent of the concerned person:

(a)        It has been published or distributed for the purpose of which the personal information has been collected,

(b)        If demanded in written form, in the course of investigation or prosecution of a criminal case, by the official authorized for making such investigation or prosecution,

(c)        If an order is made by the court in the course of taking action on a sub-judice case,

(d)       If question is to be solved, when it is raised about the qualification or any other matter of the person, who is holding a public post under the prevailing law,

(e)        If the authorized official demands for any particular kind of information in written form, in order to solve the question raised on any particular matter.

(2) Notwithstanding anything contained in sub-section (1), the authorized official of the body having the responsibility for collection and protection of information may, in the following circumstances, publish, or cause to be published, any personal information for the purpose of a study or investigation for the public purpose:

(a)        If the matter about which investigation has been made cannot be fulfilled without personal identity,

(b)        If damage and loss is not caused to the concerned person while giving personal information of any matter that has been given for the purpose of investigation,

(c)        If the concerned person has consented at the time of obtaining information or any time thereafter for the public purpose.

(3) Notwithstanding anything contained in this Section, for the purpose of archives officially established by the Government of Nepal or Provincial Government, personal information may be provided, in the following circumstances:

(a)        If there is any information that does not affect negatively to the personal status, professional or personal privacy of the concerned person,

(b)        If such information is provided for the historical research or collection or accumulation of historical facts or information,

(c)        If it is personal information of any person thirty years or more than thirty years has passed after the death of such person.

                        Provided that such information shall not be provided if he or she gets insulted or it causes damage and loss or insulation in any manner to his or her heir or children, as a result of the publicity of personal information of such person.

(d)       If such information has been recorded since one hundred years or more than that period.

  1. Not to process sensitive information: (1) A public body shall not process, or cause to be processed, any sensitive personal information remained under its responsibility or control.

(2) For the purposes of sub-section (1), the following information shall be deemed to be sensitive information of the concerned person:

(a)        His or her caste, ethnicity or origin,

(b)        Political affiliation,

(c)        Religious faith or belief,

(d)       Physical or mental health or condition,

(e)        Sexual orientation or event relating to sexual life,

(f)        Details relating to property.

(3) Notwithstanding anything contained in sub-section (2), such information may be processed in the following circumstances:

(a)        In the course of alleviation of disease, public health protection, disease identification, health treatment, management of health institution and providing health service by the licensed doctor in the concerned subject or by the health worker under direction of the licensed doctor, without insulting or letting the concerned person feel inferior.

(b)        If the concerned person has published the information himself or herself.

  1. Application may be made to correct information: (1) If any person thinks that any information related to him or her which is remained under the responsibility, protection or control of any public body is wrong or is not based on the fact, he or she may, at any time, make an application to the concerned public body in the prescribed form to correct such information.

Provided that if he or she has already taken any advantage or facility on the basis of such information, application may not be made to correct such information.

(2) While making an application pursuant to sub-section (1), he or she shall have to submit the details of why such information has been wrong or has not been based on the fact, and also the evidence to justify the fact or details claimed by him or her.

(3) If an application is made pursuant to sub-section (1) and the public body thinks that it is necessary to correct such information as prescribed by making inquiry, it may correct such information by making necessary improvement.

Chapter-4 Compensation

 

  1. Power to make order for interim compensation: (1) Where it is required to have treatment of the victim or provide compensation or any kind of relief amount immediately, the court may make an order for getting such a person medically treated or providing compensation or relief amount in an interim manner.

(2) Where the order referred to in sub-section (1) is made, the victim shall be provided with compensation or relief amount from the Fund.

(3) Where the accused person is convicted of the offence upon judgment by the court, the court shall order such an offender to pay the amount of compensation or relief amount provided pursuant to sub-section (2) to the Fund within thirty-five days of the date on which the judgment was made.

(4) Where so ordered by the court pursuant to sub-section (3), such an offender shall pay to the Fund the amount of compensation or relief, and where he or she does not pay such amount within that period, it shall be recovered from any assets belonging to such an offender as government arrears, within sixty days of the date on which the judgment was made.

  1. To get compensation recovered from offender himself or herself: (1) The court may, while making final settlement of the case, make an order that a reasonable amount be paid, as compensation, by the offender to the victim.

(2) While making order for the payment of the compensation pursuant to sub-section (1), the court shall ascertain as to whether the victim has obtained the interim compensation or not pursuant to Section 29.

(3) Where the court makes an order pursuant to sub-section (1) that compensation be paid by the offender to the victim who has already obtained interim compensation pursuant to Section 29, only the amount that remains after returning the amount of interim compensation obtained by the victim to the Fund shall be provided to the victim.

(4) Notwithstanding anything contained elsewhere in this Section, where it appears that the victim cannot get compensation because the offender has no property or where the offence is established but the offender cannot be held to be convicted or where the case related to the offence is withdrawn pursuant to the prevailing law, the court may make an order that appropriate amount be paid as compensation to the victim from the Fund.

(5) The amount of compensation shall be provided to the victim from the Fund within thirty-five days from the receipt of the order pursuant to sub-section (4).

  1. Bases to be taken while determining the amount of compensation: While determining the amount of compensation to be provided to the victim, the court may take any or all of the following matters as the basis:

(a)        Reasonable expenses borne or to be borne by the victim for medical, psychological or psychiatric counseling,

(b)        Expenses of medical treatment borne or to be borne by the   victim,

(c)        Unexpected travel expenses borne by the victim,

Explanation: For the purpose of this clause, “unexpected travel expenses” means the reasonable expenses incurred in transport while traveling more than ten kilometers for receiving counselling or treatment service which the victim requires immediately to lessen the damage caused to the victim as a direct result of the offence because such service is not available within the distance of ten kilometers from the victim’s place of settlement or workplace or the scene of crime.

(d)       Expenses for legal practitioner borne by the victim,

(e)        Damage caused to the personal capacity of the victim as a direct result of the offence,

(f)        Financial loss borne or to be borne by the victim,

Provided that where the victim has obtained or is obtain compensation for such financial loss from the insurance pursuant to law, compensation shall not be provided pursuant to this clause.

(g)        Expenses incurred or to be incurred in repairing or maintaining the damaged personal goods or purchasing new ones,

(h)        The victim’s income generation capacity lost or damaged as a direct result of the offence,

(i)         Negative effect caused to the physical beauty of the victim,

(j)         Damage caused to physical, intellectual, sexual or reproductive capacity of the victim,

(k)        In the case of the offence of rape, negative effect caused from such offence to the social, cultural or family prestige or relationship of the victim,

(l)         Where the victim becomes pregnant due to rape, expenses incurable in abortion or giving birth to and nurturing the baby,

(m)       Medical treatment expenses in the case of abortion caused from the offence,

(n)        Reasonable expenses spent by the victim in good faith to become safe from additional offence that is likely to be committed against him or her, where the special condition is attracted,

Explanation: For the purposes of this Section “special condition” means the condition where the victim has sustained or has to sustain unnatural impact or effect as a direct result of the offence committed against the victim, by taking undue advantage of the physical or mental condition of, or the place of residence, workplace of, the victim or special location of the scene of crime at the time of the commission of the offence.

(o)        Mental or emotional damage borne by the victim,

(p)        Other appropriate grounds according to the nature and effect of the damage,

(q)        In the case of the victim whom special condition is applicable to, reasonable expenses incurred by the victim in good faith to save the victim of first grade from additional offence,

(r)        Guardian’s patronage lost by the minor children.

  1. To consider group of offences as one offence: For the purpose of providing compensation pursuant to this Act, compensation shall be provided by considering a group of offences as one offence.

Explanation: For the purposes of this Section “group of offences” means two or more than two offences that are connected for the following reasons:

(1)        Having been committed by the same person or group of persons against the same person in the same incident, or having the same characteristics between these offences for any other reasons, and

(2)        Death of the victim or damage caused to the victim from the offence.

  1. Compensation not available in more than one status: No person may receive the compensation referred to in this Act as the victim of first grade, victim of second grade and family victim or in more than one form or status in any other form.
  2. Compensation not to be provided: Notwithstanding anything contained elsewhere in this Act, the following victims shall not be provided with compensation pursuant to this Act:

(a)        One who commits the offence in relation to which compensation is to be received, attempts to commit it, entices or conspires to commit, or assists in the commission of, or is an accomplice involved in, the offence,

(b)        One who makes claims for compensation referred to in this Act in the capacity of the victim of first grade where the offence has been committed against him or her when he or she was involved in any other offence or due to that reason,

(c)        A family victim of the person who has died when he or her was going to commit an offence against any one or due to that reason,

(d)       A person who is entitled to receive compensation pursuant to the prevailing law under the insurance provision of third party with respect to the damage caused due to a motor vehicle accident,

Provided that nothing herein contained shall bar the provision of compensation pursuant to this Act in cases where such a person was killed or injured by using a motor vehicle with the intention of killing or injuring.

(e)        A victim of second grade or family victim who has information that the victim of first grade has been involved in any other offence or has reasonable reason to receive such information,

Provided that this provision shall not be applicable to a person who is a witness at the time of the commission of the offence for which compensation is to be received.

(f)        A person who is victim of an offence and whose treatment has been made free on behalf of the government or whose treatment expenditure has been borne by the government and there is a possibility that the victim may get recovery,

Provided that nothing herein contained shall bar the provision of compensation in the case of a damage other than the expenses for medical counseling or medical treatment.

(g)        A victim prisoner who is in detention upon being sentenced to imprisonment pursuant to the prevailing law and has suffered mental injury due to the offence committed against him or her while in detention,

Provided that nothing herein contained shall bar the provision of compensation also for the mental injury caused from being imprisoned for the sole reason of not being able to pay the fine imposed on him or her pursuant to the prevailing law.

(h)        A person who has been convicted of the offence against the State under the prevailing law,

(i)         A person who has been convicted of any organized crime under the prevailing law,

(j)         Except for a victim who is a minor or of unsound mind, a person who has become victim of an offence committed against him or her due to provocation by him or her to commit the offence against him or her or due to the conduct of the victim,

(k)        A person who does not make information or complaint in relation to the investigation of, court proceedings on, the offence, who makes a false information or complaint, who does not assist the investigating or prosecuting authority or who makes a statement, deposition or submits evidence with the objective of saving the person involved in the offence, or who, for that purpose, makes such a statement or deposition in the court that is contrary to the statement made before the investigating authority,

(l)         A person who has received, or appears to receive, financial support or compensation from any other source of the Government of Nepal with respect to the offence for which he or she is entitled to obtain compensation,

(m)       A person who appears to be unjust for being provided with compensation from the perspective of justice,

(n)        A person who makes an application to the effect that he or she does not wish to obtain compensation,

(o)        A person who is yet to pay such fine, claimed amount or any other amount as ordered by the order of the court or such revenue or other amount payable by the victim to the Government of Nepal,

(p)        Where it is held that a false complaint has been made,

(q)        Such a victim in cases where the perpetrator is likely to receive the benefit of compensation because of the fact that both the victim and the perpetrator are both the members of an undivided family at the time of the commission of the offence,

Provided that nothing herein contained shall bar the provision of compensation to the victim pursuant to this clause in the following conditions:

(1)        Where the perpetrator is not bound to bear the criminal liability pursuant to the prevailing law because of his or her age or mental unsoundness,

(2)        Where there is no legal provision entitling the victim to compensation from the offender in such an offence, or even if it exists such a provision, it does not appear that the victim will be able to obtain compensation from the perpetrator because there is no property in the name of the perpetrator or the undivided family or for any other reason but it is proved that the victim has lived apart upon separating the bread and board from the undivided family consisting of the perpetrator after the offence has been committed, or

(3)        A woman who is a victim of rape or a child born from her.

  1. Compensation amount to get first priority: Notwithstanding anything contained in the prevailing law, where the offender has also to pay compensation to the victim, in addition to the fine, government claimed amount, ten percent, twenty percent fee, public claimed amount or any other amount, by a judgment of the court, the first priority shall be given to the compensation to be received by the victim pursuant to this Act from the amount recovered from the offender.
  2. To be recovered as government arrears: Where the offender does not provide the victim with the amount of compensation ordered by the court to be recoverable to the victim pursuant to this Act, the court shall get it provided to the victim by recovering it from the movable and immovable property of the offender as government arrears.
  3. To receive compensation by dependent child or guardian: Where the victim dies before obtaining the compensation pursuant to this Act, his or her child dependent on him or her or guardian shall be entitled to such amount of compensation.
  4. To deduct the amount received earlier for compensation: While making payment of the amount of compensation to the victim pursuant to this Act, only the amount that remains after deducting the amount received by him or her earlier for interim compensation shall be provided.
  5. To pay the amount of compensation to the Fund: If the victim does not appear to receive the compensation until six months from the date on which information as to his or her entitlement to compensation was given pursuant to this Act, the amount of such compensation amount shall be paid to the Fund after that period.
  6. No entitlement of any one else to the amount of compensation: Notwithstanding anything contained in the prevailing law, no one else shall have entitlement to the amount obtained as compensation pursuant to Section 29 or 30 of this Act except where such amount is to be returned, deducted or recovered pursuant to this Act.

 

Chapter-11 Offences and Punishment

  1. Offence and punishment: (1) If a person does, or causes to be done, any of the following acts, he or she shall be deemed to have committed the offence under this Act:

(a)        Any act contrary to sub-sections (1), (2) and (4) of Section

(b)        Any act contrary to sub-section (2) of Section 4,

 (c)        Any act contrary to sub-section (1) of Section 5,

 (d)       Any act contrary to Section 6,

(e)        Act contrary to Sub-section (2), (3) and (4) of Section 7

 (f)        Any act contrary to Section 9,

(g)        Any act contrary to sub-section (2) and (3) of Section 10,

 (h)        Any act contrary to sub-section (3) of Section 11,

 (i)         Any act contrary to sub-section (4) of Section 12,

 (j)         Any act contrary to sub-section (2) of Section 13,

(k)        Any act contrary to Section 14,

(l)         Any act contrary to sub-sections (2) and (3) of Section 15,

 (m)       Any act contrary to Section 16,

 (n)        Any act contrary to Section 18,

(o)        Any act contrary to sub-sections (2) and (3) of Section 19

 (p)        Any act contrary to Section 21,

(q)        Any act contrary to Section 22,

(r)        Any act contrary to sub-sections (1), (3) and (7) of Section 23,

 (s)        Any act contrary to sub-section (1) of Section 26,

 (t)        Any act contrary to sub-section (1) of Section 27,

                        (2)        Punishment of imprisonment for a term not exceeding three years or fine not exceeding thirty thousand rupees or both shall be imposed for the offence referred to in sub-section (1),

(3) The Government of Nepal shall become the plaintiff in the cases on the offences as referred to in clause (c), (m), (p), (q), (r), (s) or (t), and such offences shall be deemed to have been included in Schedule-1 of the National Criminal Procedure Code, 2074.

  1. Complaint may be made: (1) When any offence under this Act, other than that mentioned in sub-section (3) of Section 29, is committed, the concerned person may make a complaint to the concerned District Court.

(2) While making a complaint pursuant to sub-section (1), it shall have to be made within three months from the date of commission of such act.

  1. Compensation: (1) If any kind of damage, loss or injury is caused to any person due to the commission of any act deemed to be the offence or any other act under this Act, the concerned person or victim may make a complaint to the concerned District Court to get compensation paid for such damage, loss or pain, as well.

(2) If a complaint referred to in sub-section (1) is made, the concerned District Court shall cause to be paid the reasonable compensation to the victim from the offender if it thinks that compensation has to be paid.

  1. To award departmental punishment: If the person holding a public post does not perform the act to be performed under this Act, or performs any act which is forbidden to be performed, the departmental or other punishment shall be awarded to him or her in accordance with the prevailing law relating to the conditions of his or her service, in addition to the punishment imposable pursuant to this Act.

Chapter-5 Compensation Levy

 

  1. Provisions relating to compensation levy: (1) The offender shall pay the following amount to the Fund, as the compensation levy:

(a)        Two hundred rupees where punishment of imprisonment for less than one year is imposed,

(b)        Four hundred rupees where punishment of imprisonment for one year to two years is imposed,

(c)        Six hundred rupees where punishment of imprisonment for two years to three years is imposed,

(d)       Eight hundred rupees punishment of imprisonment for three years to four years is imposed,

(e)        One thousand rupees where punishment of imprisonment for four years to five years is imposed,

(f)        One thousand three hundred rupees where punishment of imprisonment from five years to eight years is imposed,

(g)        One thousand eight hundred rupees where punishment of imprisonment from eight years to twelve years is imposed,

(h)        Two thousand two hundred rupees where punishment of imprisonment for above twelve years but below life imprisonment is imposed,

(i)         Two thousand eight hundred rupees where punishment of life imprisonment is imposed.

(2) The offender who has been sentenced to a fine only but not to imprisonment shall pay the compensation levy in such an amount as to be set by four percent of the fine so imposed.

(3) Where the offender is sentenced to both punishments of imprisonment and fine, he or she shall pay the compensation levy in such an amount which becomes the higher, out of that to be set from the imprisonment and fine pursuant to sub-section (1) or (2).

(4) The court shall determine the compensation levy pursuant to this Section while making judgment on the offence concerned.

(5) The compensation levy referred to in this Section shall be credited to the Fund.

  1. Liability to pay compensation levy not to be deemed terminated: (1) Even if it is required to pay a fine or bear any other pecuniary liability as well for the offence in relation to which the compensation levy is to be paid pursuant to Section 41 or to pay compensation paid to the victim, the liability to pay the compensation levy referred to in Section 41 shall not be deemed to have terminated.

(2) Even in cases where the sentence imposed on the offender is pardoned, postponed, changed or lessened or remitted or suspended pursuant to the prevailing law, the liability of the offender to pay the compensation levy referred to in Section 41 shall not be deemed to have terminated.

  1. Power to make order to lessen, or dispense with the requirement to pay, the compensation levy: (1) If any offence is not able to pay the compensation levy referred to in Section 41, he or she may make an application, along with the basis, ground, reason therefor and evidence thereof, to the court concerned for an order that the compensation be lessened or the requirement to pay it be dispensed with.

(2)        While inquiring into the application made pursuant to sub-section (1), where the court thinks that there is a reasonable condition that such an offender cannot pay the compensation levy, the court may make an order that the compensation levy referred to in Section 41 be lessened or the requirement to pay it be dispensed with.