3 Crimes and Crime Investigation

3.1 Crime
Crime, the intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under criminal
law.
Most countries have enacted a criminal code in which all of the criminal law can be found, though English law—the source of many other criminal-law systems
—remains unmodified. The definitions of particular crimes contained in a code must be interpreted in the light of many principles, some of which may not
actually be expressed in the code itself. For example, many legal systems take into account the mental state of the accused person at the time the alleged
crime was committed. Most legal systems also classify crimes for the purpose of assigning cases to different types of court. Social changes often result in the
adoption of new criminal laws and the obsolescence of older ones.
This article focuses on the definition and classification of crime, how it is measured and detected, the characteristics of offenders, and the various stages of
criminal proceedings. The material draws principally from common, or Anglo-American, law, with supplementary treatment of civil-law and other systems,
including Islamic, African, and Chinese law. For full treatment of particular legal aspects of crime, see criminal law; civil law; common law; court; police; and
procedural law. Particular legal systems are treated in Roman law; Germanic law; Chinese law; Indian law; Sharīʿah (Islamic law); and Soviet law. Aspects
related to crime are also addressed in criminal justice; criminology; juvenile justice; parole; prison; and punishment.
The concept of crime: criminal codes
Criminal behavior is defined by the laws of particular jurisdictions, and there are sometimes vast differences between and even within countries regarding
what types of behavior are prohibited. Conduct that is lawful in one country or jurisdiction may be criminal in another, and activity that amounts to a trivial
infraction in one jurisdiction may constitute a serious crime elsewhere. Changing times and social attitudes may lead to changes in criminal law, so that
behavior that was once criminal may become lawful. For example, abortion, once prohibited except in the most unusual circumstances, is now lawful in many
countries, as is homosexual behavior in private between consenting adults in most Western countries, though it remains a serious offense in some parts of the
world. Once criminal, suicide and attempted suicide have been removed from the scope of criminal law in some jurisdictions. Indeed, in the U.S. state of
Oregon the Death with Dignity Act (passed in 1997) allows terminally ill individuals to end their lives through the use of lethal medications prescribed by a
physician. Nonetheless, the general trend has been toward increasing the scope of criminal law rather than decreasing it, and it has been more common to
find that statutes create new criminal offenses rather than abolishing existing ones. New technologies have given rise to new opportunities for their abuse,
which has led to the creation of new legal restrictions. Just as the invention of the motor vehicle led to the development of a whole body of criminal laws
designed to regulate its use, so the widening use of computers and especially the Internet has created the need to legislate against a variety of new abuses
and frauds—or old frauds committed in new ways.
Common law
In most countries, the criminal law is contained in a single statute, known as the criminal, or penal, code. Although the criminal codes of most English-speaking
countries are derived from English criminal law, England itself has never had a criminal code. English criminal law still consists of a collection of statutes of
varying age—the oldest still in force being the Treason Act (1351)—and a set of general principles that are chiefly expressed in the decisions of the courts
(case law). England’s lack of a criminal code is not the result of a lack of effort; since the early 19th century, there have been several attempts to create such a
code. The first effort (1833–53) was made by two panels of criminal-law commissioners, who systematically surveyed the prevailing state of the criminal law.
Confronted by a vast number of often overlapping and inconsistent statutes, the commissioners found that determining precisely what the law provided on
any particular topic was enormously difficult. Different statutes covering the same conduct, often with widely varying penalties, allowed for wide judicial
discretion and inconsistency in punishments. The commissioners drew up a number of draft codes that were presented to Parliament, but none was enacted.
Eventually, owing to the judiciary’s resistance, efforts to codify the criminal law were abandoned, and instead there was a consolidation of most of the
criminal law in 1861 into a number of statutes—the Larceny Act, the Malicious Damage Act, and the Offences Against the Person Act being among the most
important. Because those statutes were consolidations rather than codifications, many of the inconsistencies of the earlier legislation were preserved. The
Offences Against the Person Act is still largely in force, though the others have been replaced by more-modern provisions.
Interest in codification was not limited to England. A similar process ensued in India, then under British rule, and a criminal code was written during the 1830s
and eventually enacted in 1861. The code remains substantially in force in India, as well as in Pakistan. Certain parts of Africa that were once British colonies
also adopted similar codes.
In England, efforts to establish a criminal code resumed in the late 1870s, and in 1879–80 a draft criminal code bill was again presented to Parliament. Largely
the work of the celebrated legal author and judge James Fitz James Stephen, this code received widespread publicity throughout England and its colonial
possessions. Although it was not adopted in England, it was subsequently enacted in Canada (1892) and in several Australian states and British colonies. As
interest in codification declined in the 20th century, attempts were made to make specific and particular changes in criminal laws. The permanent Criminal
Law Revision Committee, established in 1959, eventually made a variety of specific recommendations, including the elimination of the distinction between
felonies and misdemeanors. In addition, the Law Commission, also a permanent body, was established in 1965 with the goal of continually reviewing the
entire law, not just the criminal law. In 1981 the commission undertook a new attempt at codification of the criminal law, and a draft code was published in
1989. However, it was severely criticized, and the commission dropped the attempt and instead produced a series of more-specific recommendations.
Criminal-law reform was one of the interests of the U.S. states in the period following the American Revolution. In the early 1820s, a comprehensive draft
code was prepared for Louisiana, though it was never enacted. Other states also moved to codify their criminal laws. New York enacted a criminal code in
1881, setting an example that was eventually followed by most of the states. Because American criminal law is primarily a matter for the individual states (in
contrast to Canada, for example, where the national Parliament enacts the criminal code for the whole country), there has been considerable variation in the
content of the code from one state to another. In the mid-20th century, reform efforts in the United States led to the publication of the Model Penal Code
(1962), an attempt to rationalize the criminal law by establishing a logical framework for defining offenses and a consistent body of general principles on such
matters as criminal intent and the liability of accomplices. The Model Penal Code had a profound influence on the revision of many individual state codes over
the following decades; although never enacted completely, it inspired a long period of criminal-code reform.
Civil law
Whereas the criminal legal systems of most English-speaking countries are based on English common law, those of most European and Latin American
countries, as well as many countries in Africa and Asia, are based on civil law. The civil-law tradition originated in the Law of the Twelve Tables (451–450 BC), a
legal code that was posted in the Roman Forum. In civil law the legislature, as the representative of the public, is viewed as the only valid source of law. It
attempts to provide a complete, detailed, and written legal code that is understandable to the common citizen and applies in virtually all situations. Therefore,
legal codes in civil-law countries tend to be much lengthier than those in common-law countries, if indeed those countries have them at all. The typical pattern
in civil law includes a definition of an offense, various relevant legal principles, and a list of specific applications of the law and specific exceptions. Judges are
expected to apply the law as it is written and generally are prohibited from engaging in the type of interpretation that regularly occurs in common-law
systems. If more than one law applies to a case, or if the circumstances are such that the law’s application is unclear, then judges refer to the legal principles
that are contained in the law. Owing to the central role of the legislature in developing the legal code, civil-law systems also generally lack the type of judicial
review that in common-law countries results in what is called case law (i.e., law that derives from judicial interpretations of legislative statutes or the
constitution).
Islamic law
Countries with majority Muslim populations have adopted diverse legal systems. Those that were once English colonies (e.g., Pakistan, Bangladesh, Jordan,
and some of the Persian Gulf states) largely adopted English criminal law and procedure, and those under French colonial influence (e.g., the countries of the
Maghrib and North Africa, including Egypt, as well as Syria and Iraq) generally adopted civil-law systems. A third group comprises those states that retained or
later adopted Islamic law—called the Sharīʿah—with few or no reforms (e.g., Saudi Arabia and Iran). (The last shāh of Iran had reformed a large amount of the
law, building on previous colonial laws, but it was almost totally replaced following the Islamic revolution in that country in 1979.)
Islamic law is a theocratic legal system that is believed to be derived from God (Allah) through the teachings of Muhammad as recorded in the Qurʾān. In
fundamentalist Islam, law is also derived from the teachings of Muhammad that are not explicitly in the Qurʾān. Laws do not originate from secular sources,
such as kings or legislatures. The Sharīʿah serves as a criminal code that lists several hard crimes, or offenses for which punishments are fixed and unalterable.
For example, apostasy requires a death sentence, extramarital sexual relations require death by stoning, and consuming alcoholic beverages requires 80
lashes.
Africa
Criminal offenses in most modern African countries are defined in criminal or penal codes, a radical departure from the uncodified English criminal law on
which many of these codes are based. Because of their origins, these codes generally reflect the penal assumptions of the original colonial power. The main
concessions to local African values or problems are the inclusion of legislation against various customary practices, notably witchcraft; the extension of the
criminal law in states with planned economies to cover economic crimes against the state; and, as a consequence of the soaring rate of some kinds of crime,
special provision for certain offenses (e.g., armed robbery). Special tribunals, not subject to the ordinary rules of procedure, have been established in many
African countries to deal with such offenses.
Sierra Leone retained a greater role for traditional, or customary, law than most other African countries. A former British territory that obtained independence
in 1961, Sierra Leone adopted a “general law” based on English common law and on the statutes of the national legislature. In the mid-1960s those laws were
consolidated in a single statute, but most of the population lived in rural areas and largely were governed by what was called “customary law.” Whereas
general law now applies to the entire country, customary law, which originated in the customs and cultures of the indigenous peoples, still varies by area or
district. Customary law is enforced in separate courts in which the judges are politically appointed tribal elders.
Nigeria established a tripartite system of criminal law and criminal justice. Its criminal code is based on English common law, but there is also a penal code
based on the Sharīʿah and a customary law based on local traditions. In Zambia, local criminal courts handle the more-serious criminal cases, while customary
courts handle most civil cases and less-serious criminal cases. Customary courts differ widely throughout the country—there are no lawyers and few formal
rules of procedure and the courts’ decisions often conflict with the formal law. In Uganda, in addition to formal criminal courts, customary courts are
authorized to hear civil cases and criminal cases involving children, but in rural areas they often hear the entire range of criminal cases, including murder
(homicide) and rape. In Zimbabwe, the Customary Law and Local Courts Act of 1990 created a single court system that hears both civil law and customary law
cases at all levels of the judiciary, including that of the Supreme Court.
China
For thousands of years, China tended to avoid formal law, instead basing social control on informal customary codes of behavior, many of which were derived
from the teachings of Confucius (551–479 BC). Those informal codes emphasized mediation and reconciliation of conflicts, which enabled all parties to “save
face.” The codes continued to be followed even after the establishment of the communist People’s Republic of China in 1949, in part because Chairman Mao
Zedong was suspicious of formal law, which he regarded as a bourgeois institution. That suspicion culminated in the Cultural Revolution (1966–76), during
which formal legal institutions largely disintegrated or were destroyed.
The rise to power of Deng Xiaoping following the end of the Cultural Revolution brought the establishment of formal legality as part of a broad reform of
Chinese society. In 1979 the National People’s Congress, China’s legislature, adopted the first codes of criminal law and criminal procedure, and the first civil
code was adopted in 1986. The criminal code, which was fairly simple and was revised in the 1990s, addressed the entire range of crimes and punishments.
In practice, criminal-justice officials have had considerable discretion in handling cases. Many offenses are handled administratively by the police themselves
without any judicial hearings or defense counsel. Punishments for those offenses include warnings, fines, and detention for a brief period, and “reeducation
through labor” for up to three years. In addition, at least some criminal offenses are handled by mediation and reconciliation programs that are regulated by
the state and continue the long tradition of informal and customary social control. Serious offenses are handled by the courts, which were reformed in 1996 to
make them more adversarial and to give the defense counsel more independence. Punishments for serious offenses include imprisonment and the death
penalty. About 70 different offenses are punishable by death, though the vast majority of death sentences are imposed for common crimes such as murder,
rape, robbery, assault (see assault and battery), and theft. Since the 1990s there have been an increasing number of death sentences for drug crimes. There
also have been a relatively small number of high-publicity death sentences for white-collar crimes such as embezzlement.
Classification of crimes
Most legal systems divide crimes into categories for various purposes connected with the procedures of the courts, such as assigning different kinds of court
to different kinds of offense. Common law originally divided crimes into two categories: felonies—the graver crimes, generally punishable by death and the
forfeiture of the perpetrator’s land and goods to the crown—and misdemeanors—generally punishable by fines or imprisonment. The procedures of the
courts differed significantly according to the kind of crime the defendant was charged with. Other matters that depended on the distinction included the
power of the police to arrest an individual on suspicion that he had committed an offense, which was generally permissible in felony cases but not in
misdemeanor ones.
By the early 19th century, it had become clear that the growth of the law had rendered this distinction obsolete, and in many cases it was inconsistent with
the gravity of the offenses concerned. For example, whereas theft was always considered a felony, irrespective of the amount stolen, obtaining by fraud was
always a misdemeanor. Efforts to abolish the distinction in English law did not succeed until the late 1960s, when it was replaced by the distinction between
arrest able offenses and other offenses. An arrest able offense was one punishable with five years’ imprisonment or more, though offenders could be arrested
for other crimes subject to certain conditions. Subsequently, further classifications were devised. For example, a subcategory of “serious” arrest able offenses
was created, and, in order to determine more easily the court in which a case should be tried, a different classification of offenses into the categories of
“indictable,” “both way,” and “summary” was adopted. Nonetheless, the traditional division between felony and misdemeanor has been retained in many U.S.
jurisdictions, though there has been a rationalization of the allocation of offenses to one category or the other, and it has been used as the basis for
determining the court that will hear the case. In some jurisdictions, minor offenses were classified under a new category called “violations,” which
corresponded broadly to the English category of summary offenses.
In systems utilizing civil law, the criminal code generally distinguished between three categories: crime, délit, and contravention. Under this classification, a
crime represented the most serious offense and thus was subject to the most-severe penalty permissible. Délits were subject to only minor prison sentences,
and contraventions were minor offenses. Beginning in the 19th century, some civil-law countries (e.g., Sweden, the Netherlands, Brazil, Portugal, and
Colombia) consolidated their codes; délits were reclassified under the broader category of crimes, and contraventions came to denote criminal offenses
committed without intent.
All types of criminal codes account for a variety of crimes, including those generally committed by individuals or unorganized groups, as well as other modes of
criminal activity. For discussions of particular crimes and types of criminal activity, see arson; assault and battery; bribery; burglary; child abuse; counterfeiting;
cybercrime; drug use; embezzlement; extortion; forgery; fraud; hijacking; homicide; incest; kidnapping; larceny; organized crime; perjury; piracy; prostitution;
rape; robbery; sedition; smuggling; terrorism; theft; treason; usury; and white-collar crime.
Arson, crime commonly defined by statute as the willful or malicious damage or destruction of property by means of fire or explosion. In English common law,
arson referred to the burning of another person’s dwellings under circumstances that endangered human life. Modern statutes have expanded this definition
so that arson now includes the wrongful burning of any public or private property.
Assault and battery, related but distinct crimes, battery being the unlawful application of physical force to another and assault being an attempt to commit
battery or an act that causes another reasonably to fear an imminent battery. These concepts are found in most legal systems and together with manslaughter
and murder are designed to protect the individual from rude and undesired physical contact or force and from the fear or threat thereof.
Bribery, the act of promising, giving, receiving, or agreeing to receive money or some other item of value with the corrupt aim of influencing a public official in
the discharge of his official duties. When money has been offered or promised in exchange for a corrupt act, the official involved need not actually accomplish
that act for the offense of bribery to be complete. The crime is typically punishable as a felony.
Burglary, in criminal law, the breaking and entering of the premises of another with an intent to commit a felony within. Burglary is one of the specific crimes
included in the general category of theft.
Child abuse, also called cruelty to children, the willful infliction of pain and suffering on children through physical, sexual, or emotional mistreatment. Prior to
the 1970s the term child abuse normally referred to only physical mistreatment, but since then its application has expanded to include, in addition to
inordinate physical violence, unjustifiable verbal abuse; the failure to furnish proper shelter, nourishment, medical treatment, or emotional support; incest
and other cases of sexual abuse, molestation, or rape; and the use of children in prostitution or pornography.
Counterfeiting, manufacture of false money for gain, a kind of forgery in that something is copied so as to defraud by passing it for the original or genuine
article. Because of the value conferred on money and the high level of technical skill required to imitate it, counterfeiting is singled out from other acts of
forgery and is treated as a separate crime.
Cybercrime, also called computer crime, the use of a computer as an instrument to further illegal ends, such as committing fraud, trafficking in child
pornography and intellectual property, stealing identities, or violating privacy. Cybercrime, especially through the Internet, has grown in importance as the
computer has become central to commerce, entertainment, and government.
Drug use, use of drugs for psychotropic rather than medical purposes. Among the most common psychotropic drugs are opiates (opium, morphine, and
heroin), hallucinogens (LSD, mescaline, and psilocybin), barbiturates, cocaine, amphetamines, tranquilizers, and cannabis. Alcohol and tobacco are also
sometimes classified as drugs. The term drug abuse is normally applied to excessive and addictive use of drugs. Because such drugs can have severe
physiological and psychological, as well as social, effects, many governments regulate their use.
Embezzlement, crime generally defined as the fraudulent misappropriation of goods of another by a servant, an agent, or another person to whom possession
of the goods has been entrusted. The offense has no single or precise definition. Typically, embezzlement occurs when a person gains possession of goods
lawfully and subsequently misappropriates them. In this respect, embezzlement is to be contrasted with the crime of larceny, which requires the taking of
goods from the possession of another without the latter’s consent. The scope of the old common-law crime of larceny has been gradually extended by various
manipulations of the concept of possession. An English statute of 1529 held in effect that a servant who carried away goods entrusted to him by his master
had committed larceny, since the legal title as opposed to the physical possession had never been transferred to him. This extension failed to cover situations
in which the servant received goods from a third person intended for his master. The failure of the law of larceny to provide adequate protection for the
property of employers against the depredations of servants and employees led to the passage of specific statutes.
Extortion, the unlawful exaction of money or property through intimidation. Extortion was originally the complement of bribery, both crimes involving
interference with or by public officials. But extortion and, to a limited extent, bribery have been expanded to include actions by private citizens as well.
Forgery, in law, making of a false writing with an intent to defraud. Writing, to be forgery, must either have legal significance or be commonly relied upon in
business transactions. It need not be handwriting; the law of forgery covers printing, engraving, and typewriting as well. In most jurisdictions, however,
“writing” excludes objects such as works of art, which when misrepresented are legally considered to be falsifications or frauds.
Fraud, in law, the deliberate misrepresentation of fact for the purpose of depriving someone of a valuable possession. Although fraud is sometimes a crime in
itself, more often it is an element of crimes such as obtaining money by false pretense or by impersonation.
Hijacking, also spelled hijacking, the illegal seizure of a land vehicle, aircraft, or other conveyance while it is in transit.
Homicide, the killing of one human being by another. Homicide is a general term and may refer to a noncriminal act as well as the criminal act of murder.
Some homicides are considered justifiable, such as the killing of a person to prevent the commission of a serious felony or to aid a representative of the law.
Other homicides are said to be excusable, as when a person kills in self-defense. A criminal homicide is one that is not regarded by the applicable criminal code
as justifiable or excusable. All legal systems make important distinctions between different types of homicide, and punishments vary greatly according to the
intent of the killer, the dangerousness of the killer’s conduct, and the circumstances of the act.
Incest, sexual relations between persons who, because of the nature of their kin relationships, are prohibited by law or custom from intermarrying. Because,
cross-culturally, incest is more an emotional than a legal issue, the term taboo is generally preferred over prohibition. The incest taboo is acknowledged in
anthropology as universal, although it is imposed differently in different societies and knowledge of its breach provokes widely different reactions from society
to society.
Kidnapping, also spelled kidnaping, criminal offense consisting of the unlawful taking and carrying away of a person by force or fraud or the unlawful seizure
and detention of a person against his will. The principal motives for kidnapping are to subject the victim to some form of involuntary servitude, to expose him
to the commission of some further criminal act against his person, or to obtain ransom for his safe release. More recently, kidnapping for the purpose of
extortion has become a tactic of political revolutionaries or terrorists seeking concessions from a government. In all countries it is considered a grave offense
punishable by a long prison sentence or death.
Larceny, in criminal law, the trespasser taking and carrying away of personal goods from the possession of another with intent to steal. Larceny is one of the
specific crimes included in the general category of theft.
Organized crime, complex of highly centralized enterprises set up for the purpose of engaging in illegal activities. Such organizations engage in offenses such
as cargo theft, fraud, robbery, kidnapping for ransom, and the demanding of “protection” payments. The principal source of income for these criminal
syndicates is the supply of goods and services that are illegal but for which there is continued public demand, such as drugs, prostitution, loan-sharking (i.e.,
usury), and gambling.
Perjury, in law, the giving of false testimony under oath on an issue or point of inquiry regarded as material.
Piracy, any robbery or other violent action, for private ends and without authorization by public authority, committed on the seas or in the air outside the
normal jurisdiction of any state. Because piracy has been regarded as an offense against the law of nations, the public vessels of any state have been
permitted to seize a pirate ship, to bring it into port, to try the crew (regardless of their nationality or domicile), and, if they are found guilty, to punish them
and to confiscate the ship.
Prostitution, the practice of engaging in relatively indiscriminate sexual activity, in general with someone who is not a spouse or a friend, in exchange for
immediate payment in money or other valuables. Prostitutes may be female or male or transgender, and prostitution may entail heterosexual or homosexual
activity, but historically most prostitutes have been women and most clients men.
Sedition, crime against the state. Though sedition may have the same ultimate effect as treason, it is generally limited to the offense of organizing or
encouraging opposition to government in a manner (such as in speech or writing) that falls short of the more dangerous offenses constituting treason.
Treason, the crime of betraying a nation or a sovereign by acts considered dangerous to security. In English law, treason includes the levying of war against the
government and the giving of aid and comfort to the monarch’s enemies. It is also treason to violate the monarch’s consort, eldest unmarried daughter, or
heir’s wife.
Usury, in modern law, the practice of charging an illegal rate of interest for the loan of money. In Old English law, the taking of any compensation whatsoever
was termed usury. With the expansion of trade in the 13th century, however, the demand for credit increased, necessitating a modification in the definition of
the term. Usury then was applied to exorbitant or unconscionable interest rates. In 1545 England fixed a legal maximum interest, and any amount in excess of
the maximum was usury. The practice of setting a legal maximum on interest rates later was followed by most states of the United States and most other
Western nations.
White-collar crime, crime committed by persons who, often by virtue of their occupations, exploit social, economic, or technological power for personal or
corporate gain. The term, coined in 1939 by the American criminologist Edwin Sutherland, drew attention to the typical attire of the perpetrators, who were
generally businesspeople, high-ranking professionals, and politicians. Since Sutherland’s time, however, such crimes have ceased to be the exclusive domain of
these groups. Moreover, developments in commerce and technology have broadened the scope of white-collar crime to include cybercrime (computer crime),
health-care fraud, and intellectual property crimes, in addition to more-traditional crimes involving embezzlement, bribery, conspiracy, obstruction of justice,
perjury, money laundering, antitrust violations, tax crimes, and regulatory violations.
Causes of crime
Poverty
Poverty is one of the main reasons for crime. Countries with high rates of economic deprivation tend to witness higher crime rates than other countries. Since
people do not have the means to secure a living in the right ways, they invest their time in criminal activities since they are not only an easy means to get what
they want but also do not require any other prerequisite talents. The ever-increasing divide we are witnessing between the rich and the poor can also be
attributed to more and more of the poor looking to crime as a means for living. Not being able to earn and sustain themselves leaves people so frustrated that
they resort to illegal means to sustain themselves and their families. According to the data collected by National Crime Records Bureau, theft is one of the
most common crimes in India. All in all, the wealth inequality and insufficient means to acquire a living in an honest way is driving the poor in India towards a
life of crime.
Peer Pressure
It is an established fact that peer pressure plays a significant role in the lives of all teenagers and young adults. That is a phase of life where people tend to
look up to their friends and believe what they do is the right or rather ‘hip and happening’ thing to do. So, peer pressure compels them to join the bandwagon.
The lack of wisdom and experience these people have just added fuel to the fire. As a result, many individuals in their youth subconsciously get drawn to vices
like alcohol consumption and smoking just by looking at their peers. The problem goes out of hand when this peer pressure does not stay restricted to alcohol
and cigarettes but extends to other illegal activities involving drugs that have the potential to become an addiction and subsequently ruin their lives.
Drugs
Crime and drug abuse are closely related. A person under the influence tends to indulge in criminal activities that they may have not indulged in otherwise.
The main problem arises when they get addicted to the drugs and believe they require it to sustain themselves. In such a situation, drug addicts are ready to
go to any extent to procure these illegal substances. According to the data collected by the National Institute on Drug Abuse, which is a wing under the
National Institute of Health in the United States of America, over 70,000 people succumbed to drug overdoses in America, in the year 2019 alone. These
figures are alarming. Under the influence of drugs, people feel the urge to do things that are not only illegal but also have the potential to ruin and at times
even end their lives.
Politics
The interrelation between politics and crime is overlooked many times. This is problematic as many people have engaged in criminal activities while dealing
with political issues. There are umpteen politicians with a criminal record. Additionally, there have been quite a few politicians in developing countries who
have also been associated with violent crimes and murders. So many youth members of parties are often given weapons and instructed to handle matters
violently during conflicts. Any political dispute, however insignificant, usually leads to rampant violence involving mobs. This not only exposes youth to
criminal activities but also puts the lives of various citizens at risk. So, an unstable political situation in a country leads to an exponential increase in the crimes
that take place there.
Religion
Even today, unfortunately, various divides and issues of society can be attributed to religion. Despite it being a basic human right, many people are deprived of
practicing their own religion. This leads to a feeling of resentment in the minds of believers. Moreover, there have been an awful lot of cases involving crimes
over different schools of thought too. Innocent lives have been lost in this war over ideological concepts that have existed since time immemorial. This is an
extremely sad state of affairs considering that it is already the 21st century and human beings have progressed so much in other areas. There are a huge
number of crimes committed by religious fanatics while they try to further their cause by propagating their religion or at times try to establish their religious
superiority over other faiths by resorting to destruction and vandalism.
Background
Oftentimes the background and family conditions of a criminal can be attributed to the reason behind their crimes. When people believe that they are
responsible to provide for their family and they are unable to do so owing to lack of opportunities, lack of education or other such issues that handicap them,
they resort to crime. This is a sad state of affairs as in such situations it is highly likely that the criminal would have refrained from engaging in criminal
activities had there been sufficient means for them to sustain themselves and provide for their family. This issue does not lead to crimes such as theft alone
but also motivates people to commit gruesome acts that put their freedom and lives at risk just so they can make a good amount of money through bribes or
ransoms that can be used for their family’s sustenance.
Society
In today’s times, money is one of the most important aspects of everyone’s life. The meaning of money is not restricted to the amount of wealth in a person’s
bank account but is instead also attributed to their societal status, worth, and even values. As a result of this, people value money more than their
relationships and happiness. What other people think of a person is more important to them than how they feel. Even schools and universities do not teach
children how to be happy and satisfied in life but instead teach them how to make more money, which indirectly attributes wealth to worth. A case in point
would be people in awe of students who study and take up professions in the fields of science as opposed to art as conventionally, they have chances of
earning more. As a result, people earning less feel unworthy and are compelled to indulge in a life of crime so as to make more money and feel more worthy.
Unemployment
The lack of employment opportunities is an issue faced by developing and developed countries alike. A huge portion of the youth of today are unemployed
and as per a report by the Confederation of Indian Industry, the youth employment rate is ever-increasing. According to the data recorded by the Centre for
Monitoring Indian Economy, the unemployment rate in our country is ever increasing. Naturally, this leaves the youth frustrated as despite spending a lot of
time and money on their education they still find it tough to get a good job. This leads to a feeling of resentment towards the system in the minds of many
youngsters who then rebel and resort to crimes early on in their lives.
Unequal rights
Deprivation is another significant contributor to the increasing crime rates. People resort to notorious activities when they are deprived of their basic rights
since that impedes their means to obtain a livelihood in a conventional and honest way. They have limited options and are already at a disadvantaged position
in society that they choose to make money and sustain themselves through hook or crook. This usually involves them engaging in criminal activities.
Unfair justice system
The flawed justice system is another major contributor to crimes. When people believe that they are not given their due and are unfairly treated by the
system itself, they harbor feelings of resentment towards it and start to rebel. This involves them engaging in criminal activities and doing the opposite of
what is expected of them. People try to get justice for themselves when they feel like the state is not going to do the same and tend to commit various acts of
crime in their journey to avenge themselves and get what they believe they deserve. Many innocent people resort to crimes when they are wrongly proven to
be guilty in the Courts owing to a lack of trust in the system.
3.2 Different crimes in Nepal
3.2.1 Organized Crime
In Nepal the exact condition of organized crime cannot be assumed but nobody can deny its existence. There are numerous cases which were committed in an
organized way. Human trafficking, drug trafficking, money laundering, arms trafficking, vehicle trafficking etc. have become the general phenomenon for
Nepalese people. Nepal police has categorized murder, robbery, fraud, counterfeit currency, drug offence, extortion, kidnapping, offence regarding bombs
and explosives, offence related to firearms and amm gitions, gambling and aggravated theft as organized crime.
In Nepal: organized criminal activities were not existent during the Rana regime. After of the fall of Rana regime in 1950 up to the royal takeover of 1960 any
organized criminal activities were unheard. In India also. only in 1940s, in the Bombay organized criminal activities slowly started taking roots. During the
Panchyat period of 1960 to 1990s; there was no significant evidence of existence of organized criminal groups in Nepal though the widespread smuggling of
antique religious idols were unofficially blamed or organized criminal gangs having a nexus with then power center the Royal Palace. Former PM Surya
Bahadur Thapa frequently pronounced the existence of "Underworld group" but did not elaborated and revealed who they were."
After the restoration of multiparty democracy in 1990s, Organized crime is prevalent everywhere in Nepal particularly in urban areas, with the murder of
former MP and minister Mirjadilsadbeg in 29 June 1998 at sifal, Kathmandu, the existence of organized criminal and their coordinated connection with
international gangs especially from South Asia came in surface. Nepal police had information that he was murdered by by Rajendra Sadashiv Nikhalji alias
Chhota Rajan, one of the dreaded mafia gang of Mumbai, India. This was an eye opening case for Nepal police."
Nepal is not yet a major drug transit country, although its 1,000 mile border with India, as well as its proximity to Pakistan and Myanmar, make it an ideal
alternate route for illicit narcotics moving through Asia to Europe and the USA. Southwest and Southeast Asian heroin is smuggled into Nepal across the
porous Indian border and through Katmandu's international airport. Another criminal activity now flourishing in India is the trafficking of children for the sex
trade. Women and children are transported from Nepal and Bangladesh to the brothels of Bombay and Calcutta. Bangladeshi children are taken through India
en route to Pakistan. In February 1996, Bombay police raided India's largest brothel and rescued over 400 women and children: 218 of them had been brought
from Nepal.
Two prominent Nepali media magnates, Yunus Ansari and Jamim Shah, were alleged to be part of a currency trafficking network run by Dawood Ibrahim. Shah
was murdered in 2010, allegedly by Babloo Shivastava. Ansari, the son of a former Nepali minister, was arrested in 2010 after being caught receiving 2.5
million in fake Indian currency from two Pakistani couriers. Former Nepali crown prince Paras Shah was also alleged to be part of the Dawood network, using
his connections to assure that currency moved freely within Nepal. Economic Crimes. Drug smuggling. Illegal logging and timber smuggling. Illegal trade in
wildlife and Human trafficking, transit route of gold and sandal wood smuggling to India ete, are the very common phenomenon in Nepal."
Some of the prevailing Organized Crimes in Nepal are:
Narcotic drug trafficking:
As regards drug production and trafficking; India, Pakistan, Afghanistan and Nepal in South Asia have important connections with Europe and the USA via the
Middle East (and Turkey). Nepal is not yet a major drug transit country, although its 1,000 mile border with India, as well as its proximity to Pakistan and
Myanmar, make it an ideal alternate route for illicit narcotics moving through Asia to Europe and the USA."
In recent years Nepal has become an important transit point for narcotic drug trafficking: most commonly the drug traffickers have begun using Nepal as a
supply point of narcotics especially hashish to Japan and China. The smugglers around the world also have been using Nepal as the important transit point for
cocaine smuggling.
From Kathmandu, illicit drugs like cocaine and heroin are often supplied to India, China, Thailand, Europe and the US from Nepal's only international airport,
Tribhuvan International Airport (TIA). The airport doesn't have advanced technologies including the latest drug screening machines. Authorities claim that
Nepal is also preferred as a smuggling route by foreigners for illicit drug trafficking due to a lack of extradition laws. The Narcotics Control Bureau (NCB) claims
that due to the lack of the death penalty and cheap fines, traffickers are finding Nepal as a viable markets ship drugs and one of the biggest reason for the
traffickers to select Nepal for transit."
In June 2005: a drug peddler was arrested in New Baneshwor, Kathmandu after long investigation and attempt by the narcotic drug control law enforcement
unit (NDCLEU) popularly known as "Robinson Scandal". In 7 August, 2017 in the afternoon an alleged gunman named Prabin Khatri shot dead by Nepal police
at Kusunti of Lalitpur. Metropolitan Crime Division has claimed that he was a drug dealer and he was killed in an "encounter outside his house during drug
raid."
Recently on Jan 19, 2018: Two foreigners have been arrested in possession of two kg cocaine from a hotel in Thamel, Kathmandu. A police team deployed
from the NCB of Nepal Police arrested Baliomm Citizen Freddy Mamani Andia and Thai woman Khuanjai Khanarat. The market price of the confiscated cocaine
is said to be around Rs 40 million. The Bolivian citizen had entered Nepal through India via Ethiopia and Brazil. It has been learnt that the detainees were
planning to head Thai Capital Bangkok from Nepal.
 Human Trafficking
Nepal is becoming a source, transit, and destination country for men, women, and children subjected to forced labor and sex trafficking. Nepali women and
girls are subjected to sex trafficking in Nepal, India, the Middle East, Asia, and sub- Saharan Africa. Nepali men, women, and children are subjected to forced
labor in Nepal, India, the Middle East, and Asia in construction, factories, mines, domestic work, and begging. Many Nepalese, including children, whose home
or livelihood was destroyed by the 2015 earthquakes continue to be vulnerable to trafficking. Traffickers increasingly utilize social media and mobile
technologies to lure and deceive their victims.
In spite of the existence of law to control and prevent the trafficking of human being and law to prohibit human body organ: a large gambler of women and
children are transported from Nepal and Bangladesh to the brothels of India. In February 1996, Bombay police raided India's largest brothel and rescued over
400 women and children: 218 of them had been brought from Nepal."
Nepalese men, women and children are trafficked into neighboring India as well as other countries such as Syria, South Korea, China, Malaysia, United Arab
Emirates, Mexico and the United States. Human traffickers have utilized the India- Nepal open border to facilitate human trafficking routes. There are only 14
checkpoints regulating the Indian-Nepali border which spans over 1,500 kilometers, which traffickers are able to exploit. The United Nations estimates that
approximately 7.000 Nepalese women and girls are trafficked into India every year.
 Money Laundering:
Electronic networks offer enormous opportunities for the movement of capital without the need to use a traditional institution to act as an intermediary, Illicit
funds can easily be moved through countries in which policies to counteract money laundering are marginal or non-existent. Nepal the anti money laundering
practices are of very recent origin so money laundering has becoming a major issue for the country. Letter of Credit (LC) Tiwadewal Scandal and The Money
Laundering Investment Department has been investigating businessman Ajayera Sumargi's 12 Billion rupees claimed to be obtained illegally without any
approval from the concerned authority as a foreign investment.
The Basel AML Index measures the risk of money laundering and terrorist financing of countries based on publicly available sources. A total of 14 indicators
which leads to high risk ranking in the index such as; shortfall in the AML/CFT framework, high level of perceived corruption, financial standards and
transparency, lack of public transparency, weak political rights and rule of law are aggregated into one overall risk score.
According to the Basel AML index 2017 score and rankings from highest to lowest money laundering risk among 146 countries, report published by Basel
institute on governance; Iran has highest risk score 8.60 and Finland has the least risk score 3.04, Nep having 7.57 risk score stood 14th in the global ranking
and second most vulnerable in South Asia after Afghanistan 8.38, 2nd ranking after Iran.
 Kidney Trafficking:
As human organ transplantation has become a common medical procedure globally, demand for human organs has also increased. The wide gap between the
demand for transplantable organs and the supply has allowed an illegal and unregulated organ market to flourish. Consistent with the global emergence of
human organ trafficking. there have been several reported cases of kidney 37 trafficking in Nepal."
Kavre has long held the infamous epithet of being the Kidney Bank of Nepal. with hundreds of poor villagers from the district duped into selling their kidneys
illegally by well-organized organ trafficking syndicates which are also expanding their tentacles to neighboring districts. According to date from the Forum for
Protection of People's Rights, Nepal, around 119 to 178 people from nine VDC's in Kavrepalanchowk district were recorded to have been trafficked to India to
harvest their kidneys last year. Most victims were from Hokse. Sathighar Bhabgati, Anekot, Devbhumi Baluwa, Kavre Nitya, Chandeswori, Panchkhal, Phulbari,
Jyamdi and Jaisithok. There are more than 300 people in Kavre district who have had their kidneys illegally removed. The traffickers have now even begun
taking victims from Sindhupalchowk, Rasuwa, Makawanpur, Bardiya and Gorkha districts. Kathmandu Airport, Kakadbhitta, Birgang Raxaul, Bhairahawa and
Sunauli etc are the major route and Chandigadh, Chhennai, New Delhi etc are the major destinations for kidney trafficking."
Among many factors, impunity and poverty are the main contributors to human and organ trafficking. Although legal loopholes seem to be the facilitating
factor for organ and human trafficking, a substantial number of people from remote and impoverished communities are often the victims and are mostly
allured by financial incentives. However, it is arguable if poverty alone could have been the only factor provoking people to sell their organs." Brokers often
recruit victims by exploiting their ignorance, assuring them, for example, that one kidney is enough for a healthy life, that it's just an "insignificant organ," and
even that a donated kidney will "resprout." They hold out the promise of acquiring a house and land. Community-based awareness programs are needed,
using local media such as FM stations and newspapers, to combat this misinformation.
 Small arms smuggling:
The illicit proliferation and misuse of small arms and light weapons is posing a serious threat to security. The small arms are rarely used in killing: criminal
gangs possess them to threaten the victims of extortion, kidnapping and robbery. The influence of the long political conflicts in Nepal has also contributed to
increase the smuggling of arms and ammunition in the country.
Arms were trafficked across Nepal's northern border with China during the insurgency (from 2000 to 2006 in particular); since then most illicit firearms come
from India. India is the primary source of small arms in Nepal. most of them entering the Terai region via its long unregulated border. The towns bordering
India in the south and China in the north, such as Birgunj, Biratnagar, and Tatopani, have become transit points for small arms smuggling. The mam onward
destinations are in the Kathmandu Valley, Narayanghat, and Dharan. The cities in the Kathmandu Valley and Dharan are also transit points for the surrounding
districts. A research conducted by Small Arms Survey, Nepal Armed Violence Assessment and Interdisciplinary Analysts in 2013 has estimated that the
Kathmandu valley alone has around 10,000 of the total 3,95,000 privately-owned illegal firearms in the country."
Recently, shooting of the chairman of federation of contractor's association Nepal (FCAN) Sharad Kumar Gauchan on 9 October 2017 at Shantinagar,
Kathmandu is one recent example of murder by using illegal small arms. The country is being increasingly inflicted by smuggling and illegal trade of small
arms. This fast festering malaise has intensified serious crimes like murder. extortion, death threats, abduction and robbery. Fears are palpable that the
growing market of small arms in the country may wreck the social fabric of the country.
 Kidnapping and abduction:
In Nepal kidnapping and abduction is very easy due to open boarder with India. Former executive director Dr. Bhaktaman Shrestha of Bharatpur Cancer
Hospital was kidnapped from Nepal and was hidden in UP state of India and kidnappers received ransom in India. He was released after 19 days of captivity.
After release. Dr Shrestha said that he was abducted by a never heard-before political party. There were news reports that said Maoists were involved in the
abduction."
Similarly: Ex-minister Shyam Sundar Gupta arrested for extortion bid' from Bhairawa on 16 Jan 2012, he was convicted of businessman Pawan Kumar Sanghai's
abduction for ransom, from Kamaladi, Kathmandu, and jailed for seven years. Gupta did time for about three years and was released in July last year after 80
reduction in his term."
 Passport forging scandal:
Red passport scam remains as one of the biggest corruption scandals in Nepal in the year 2011. The Commission for the Investigation of Abuse of
Authority(CIAA) has filed cases against lawmakers Gayatri Shah (Nepal Janata Dal), Bishownath Prasad Yadav (Madhesi Jansadhikar Forum-Republican), and
Shiva Pujan Raya Yadav (Madhesi Janaadhikar Forum-Nepal) in the court. The chief immigration officer of the Tribhuwan International Airport, and other
officials from the same office have been charged with assisting in forging the diplomatic passport to travel with fake documents to the foreign countries.61
Trafficking and transportation of wildlife and forest products:
Wildlife and forest crime refers to trading (supplying, selling or trafficking). importing, exporting, processing, possessing, obtaining and consumption of wild
fauna and flora, including timber and other forest products, in contravention of national or international law 62 Illegal logging, and timber smuggling, illegal
hunting and smuggling of animal's organs, trafficking and transportation of illicit herbs and medicinal plants are very common phenomenon in Nepal.
Nepal is known to have been an important center for illegal wildlife trade. Kathmandu Valley is becoming an international hub and one of the largest
underground trade center. Commodities include shahtoosh, fur, musk pods, bear bile, tiger skin and bones, ivory, rhino horn, leopard parts and live animals
(turtles, birds). There is a well-connected nexus for smuggling these commodities linking Nepal with China and India. Further. Nepal's porous border and its
extensive international airline connections have made it an easy flow area. Recent seizures of wildlife parts also indicate that Nepalese territory is increasingly
being used to transport these goods to the end users in Tibet/China, East Asia and even to the west. Recently on October 2017. The Central Investigation
Bureau (CIB) of Nepal Police arrested wildlife smugglers with live birds, chimpanzees and monkeys from Bansbari, Kathmandu. Acting on a tip-off regarding
smuggling of wildlife species from Nigeria to Nepal and possibility of transporting these to India, a sleuth of CIB raided a house in KMC-3 and rescued two
chimpanzees, eight monkeys, seven golden pigeon, two ring net pigeons, 38 pigeons and 65 parrots. 64
Government of Nepal, Ministry of forest and soil conservation had organized a "Wildlife stockpile destruction ceremony" in Kashara, Chitwan on 22 May,
2017, more than 4,000 items of confiscated wildlife parts were burnt publically in that ceremony, it was an attempt to demonstrate zero tolerance for the
illegal wildlife trade. The stockpile included parts from 48 species, including 67 tiger skins, 418 common leopard skins, 354 elephant tails, 15 bear gallbladders,
357 rhino horns, two sacks of pangolin scales, and hides from red panda, clouded leopard, and snow leopard
 Politicization of Crimes:
In Nepal there are so many instances of the affiliation of the criminal gangs with different parties and the political leaders are protecting the criminals for their
self interest. There are so many scandals which occurred during last few decades like dhamija to lauda air scandal, chase air to Birgunj sugar factory scandal,
Robinson scandal, Wagle and chaturvedi scandal, red passport scam etc.
The nexus between crime and political parties in Nepal has been thickening and few political parties in Nepal are immune to using criminal groups for political
purposes. The porous border between India and Nepal, and the difficulties in physically distinguishing between Indian or Nepali not only facilitate smuggling.
but also enable the existence of safe-havens for terrorist and other armed groups on both sides of the demarcation line. The Indian government has long
complained that terrorist groups such as Lashkar-e-Taiba. Harakat-ul-Mujahideen and Harakat-ul-Jihad-ul-Islami use the cities of Nepalganj and Birgunj for
planning. financing, and recruitment to conduct terrorist operations in India."
Rather than organized crime itself which is still at a primitive not yet highly developed stage in Nepal, while corruption, patronage, clientelism and the overall
patrimonial system in Nepal are thus both an element of politics and the enabling environment for organized crime & illicit economies."
The cases prosecuted from the Government Attorney Office within the Kathmandu Valley; it was found that, among the 21 organized crime cases, male were
found 92% and female were 8% and no children and other were found involved among the 121 defendants and only 73% were arrested, 7% were foreign
citizens. The study of the files of 21 cases have shown that among the cases decided from the initial district court 63% were punished in the main crime and
clearance were given in 37% cases.
Courts, police, public prosecutor, CIAA, Nepal Rastra Bank, Custom office, Revenue leakage investigation department, Narcotic drug law enforcement unit etc.
are some of the major institutional mechanism to combat the organized crime in Nepal.
Organized Crime Prevention Act 2070 of Nepal is the main instrument to combat organized crime. Sec(31) of Country Criminal (Code) Act, 2074, has made a
provision that, If two or more than two commits an offence, all the members of that group will be punishable for that offence. Sec 38: The conditions to
increase punishment; 38 (V) has made a special provision to increase the punishment in the offence committed in a planned and organized way." 64
Sec (12) of Country Criminal Procedure (Code) Act, 2074, has a provision to formulate a special investigation team depending on the gravity of the offence."
In addition to the act there are some other legal provision related to organized crime in Nepalese law which are: Ancient monument Preservation Act 2013,
Country Code 2020 (Chapters on theft/stealing. counterfeiting. Kidnapping/Abduction and Hostage Taking and Human trafficking), Human trafficking control
act 2064, Narcotic Drug Control Act, 2033, Medicine Act. 2035. Arms and ammunition act 2019, Explosive substance act, 2018. Corruption control act 2059,
Cyber act, 2061, Foreign exchange regulation act, 2019, Nepal Rastra Bank Act, 2058,. Children Act, 2048. Commission for investigation of abuse of authority
Act 2049, Revenue leakage Act, 2052, The Asset (Money) Laundering Prevention Act, 2063, The Mutual Legal Assistance Act, 2070, The Extradition Act. 2070.
The Prevention of Corruption Act, 2059. The National Parks and Wildlife Conservation Act, 2030, The Banking Offence and Punishment Act, 2064, The Foreign
Employment Act, 2064. The Electronic Transactions Act. 2008; The Black-marketing and Some Other Social Offenses and Punishment Act, 1975; The Bonded
Labor (Prohibition) Act, 2002; The Child Labor (Prohibition and Regulation) Act, 2000; The Copyright Act, 2002; The Espionage Act, 1962; The Gambling Act,
1963; and The Human Body Organ Transplantation (Regulation and Prohibition) Act, 1998 etc.
Conclusion:
Technological development and the new opportunities provided by the globalization of financial markets and communications are key factors for the
development of organized crime. Organized crime is a transnational problem of human society all over the world. Therefore collaborative effort of
international community is necessary for combating this global problem. The United Nations has played a central role in the fight against organized
transnational crime in all its specific manifestations. Comprehensive legal framework and very advanced and well equipped organizational setup is necessary
for combating this transnational problem. International community must put their hands together to harmonize extradition and deportation laws and to
narrow the differences in defining organized crimes and the court procedures.
Apart from very few instances of organized crime in Nepal it is still at a primitive not yet highly developed stage as compared to the other countries. The
smugglers around the world have been using Nepal as an important source, transit point and destinations for narcotic drug trafficking: small arm smuggling,
trafficking of fauna and flora, and gold smuggling etc. The Tribhuvan International Airport: only one international airport of Nepal is found to be equipped with
outdated drug testing machines and lacks other advance technologies. Nepal is preferred as a transit route by foreigners or traffickers due to the open border.
lack of extradition laws, lack of the death penalty and cheap fines and other loose provisions in the laws as comparable to the other countries.
As Nepal has ratified the UN convention on Transnational Organized Crime and UN convention against corruption and some other regional conventions, it has
enacted the separate special laws and established some institutional mechanism to combat the organized crime; however they seems very insufficient and
traditional depending on the serious, complex and sophisticated nature of Organized Crime. Therefore, strong and comprehensive law having strict and high
penalty should be imposed, very advance technology based and well equipped organizational setup is needed as well as the existing system of investigation
and prosecution must be modernized to combat the organized crime in Nepal.
3.2.2 Cross-Border Crime
Introduction
Cross-border crime is the illegal activities of individuals and organization whose actions straddle territorial boundaries and whose objectives are to maximize
economic profits or achieve political objectives. In Indo-Nepal border areas, there is additional concern about the increment in crime, especially cross-border
crime. The involvement of organized criminal gangs in drug, counterfeit, kidnapping and extortion with a nexus between the politicians and the criminal gangs
have been accounted. They significantly misused the people vulnerable to the crime.
Smuggling is quite prevalent in the border points all over the world but is organized in nature. The practice of smuggling of ordinary goods in the border areas
has import or export taxes imposed that lead to the smuggling of contraband goods. Reckless (1967) outlined that smuggling is the main characteristic of
international border crime. He further highlights that smuggling in the borderline is the result of import or export duties on commodities and the national
border seems to attract and make smugglers.
Millets (2007) defines border as significant for a homogeneous society and culture whereas it is marginalized from the central area, and thus criminal gangs
can conduct criminal activities. Organized criminal groups can get local support due to vulnerability, both geographically and socially, and they misuse people
for their vested interests. Conway (2002) argues the role of modern technology in enabling the cross-border crime. Technical innovation and its speed cross
the border which also contributes to the spreading of criminal activities. Aas (2007) uses the term 'transnationalism'- changing the form of social relation that
plays a vital role in changing the form of crime.
Cross-border crime is twenty-first century's booming illegitimate industry. According to Devetak (2008), goods, capital, people, information and principle
beliefs, as well as arms, drugs, criminals, terrorists and pollutants, now appear to traverse nation-state borders with greater ease and speed and in larger
volume than ever before. Thachuk (2007) mentions that smuggling and trafficking, now more than ever, are booming industries. In this era of rapid
globalization, the incentives for cross-border crime have increased, as criminals have identified the opportunities to gain greater rewards from criminal activity
outside their traditional boundaries. Organized criminal groups have enhanced and extended their networks throughout the world, weakening borders of the
nation-state. Illicit goods are smuggled and proliferated across the border in which the borders are misused or affected.
The geographical significance, the land between two powers India and China, of Nepal provide feasibility to the cross-border crime that also affects the
internal security of the country. Legal and illegal goods flow through the land and air rout of Nepal which leads the country towards the bridge of criminal
activities prior in between India and Nepal. The new forms of cross-border crimes are accounted which also enhance organized crime in Nepal. In several
contexts, the motivation of the crime is not only limited to the monetary interest also to the political interest.
Challenges in Indo-Nepal Borderline
Regarding the dimension of crime at the political border in Indo-Nepal border areas, it is not unique, and since border crime has long existed throughout the
world. The Indo-Nepal border faces crime related to national boundaries on the political borders. Das (2008) interprets the disadvantages of Indo-Nepal open
border system which provide the opportunities for smugglers, drug and arms traffickers, terrorist and insurgents, petty criminals, etc. According to Watson
and Crozier (2009), the open border between Nepal and India is perceived to be a key contributing factor to the high levels of crime in the Terai regions.
According to Shrestha (2017), the open border has more or less disturbed the security system of Nepal and India and at present context; challenges are
growing from outside Nepal.
Blaming the characteristics of border such as geographical viability, people, culture, cross-border contact and borderless nature is a way of stereotyping the
region as a crime zone. Braun (2010) concludes that a porous border is one of the causes of cocaine trafficking in West Africa. Lo (2009) regards the borderless
nature of the entire Greater China regions is the prominent factor shaping the incessant cross border crime. Upreti (2010) describes the cross-border
connection of criminals in Indo-Nepal border areas. It may not be obvious that the adjoined border area is unsafe due to the terrible crime rates on the other
side. Despite the border adjoined with the city of Mexico, world's dangerous place, in terms of crime rates, El Parlo city of Texas is ranked among one of the
safest cities in America. Shashikumar (2008) states that Nepal-Bihar border is largely unmarked, unguarded and highly porous, where cross-border smuggling
is out of control. McDonald and Vaughn (2013) outline India-Nepal border as a porous. Baral and Pyakurel (2013) urge India-Nepal border as an "open border"
not "porous border". KC (2013a) has challenged the trends of biased arguments which blame open border as a prime cause and further developed the concept
that open border with India is not the prime cause of Indo-Nepal cross-border crime and dismiss the presumption that the open border is possibly leading.
The supply and demand context play vital role on cross-border criminal activities. Research conducted by the Department of Custom in 2007 shows that
average daily two ways flow of the people across India Nepal is 13 283 whereas daily smuggling legal/illegal cost NRs. 44 600 000. It has estimated that annual
stolen and smuggled materials cost thirteen billion eighty-one crores rupees (NRs 13,810,000,000). The context shows Nepal and the demand side and India as
the supply side of the goods illegally smuggled through the land route. On the other hand, illegal goods smuggle in both the sides depending on their market
and opportunities for vested interests.
Organized Crime in Border Areas
Major types of Crime
• Drugs • Human • Small-Arms • CITES • Gold • Counterfeit • Kidnapping
Organized crime is more organized than the state. Organized crime strengthen their networks in Indo-Nepal border areas for operating drug cultivation and
trafficking, gold smuggling, trafficking of counterfeit notes, human trafficking, CITES4 crimes (Wildlife crime), and smuggling of goods by illegal channels.
Global Financial Integrity report Nepal lost 8.7 billion US dollars due to a large-scale capital flight has taken place in between 2003-2012. In two different cases
of capital flights, 1.5 million and 1.8 billion being siphoned off the country in 2009 and 2010 respectively.
Criminal elements can infiltrate any political system by forging links with politicians and government officials. Criminalization of politics is evident in more or
less all over the world. On the other hand, increasing corruption is the major problem of Nepal. The bureaucracy in Nepal and India is highly susceptible to
corruption that may ease the organized criminals to penetrate in local level to high level bureaucracy deploy in Nepal-India borderlands.
Security Challenges
The motives of cross-border Crime are:
• Economic • Political • Social
Nepal has faced several challenges of cross-border crime, interlink to the organized crime. The cases of smuggling of gold, illicit drugs, human trafficking, CITES
crime, has been increased. Regarding the involvement of well organized criminal groups in such crime, it becomes a threat to the internal security of the
country. Regarding the gold smuggling cases in Nepal, KC (2018) argues that Nepal has become a transit point for transporting illegal goods such as drugs,
endangered species, gold and even human beings to other countries.
The activities of fake currency racket have their vested interest. KC (2017b) argues that the proxy war between regional powers reflect in fake currency related
activities in Nepal's Terai. It shows that the influence of external forces in cross-border organized crime. Similarly, smuggling of red sandalwood disclose the
well-organized criminal groups actively involved in smuggling of illegal goods in between India and China making Nepal a bridge for their illegal activities.
Islamic Fundamentalist and the separatists are active in the Indo-Nepal border areas. They have their vested-political interests. KC (2017c) mentions that
several fundamentalists and separatists, Yasin Bhatkal, Tunda, Niranjan Hojai, etc., active against India were arrested in Nepal. Hence, trans border crime
sometimes may have a link with terrorism. Regarding the arrestment of Niranjan Hojai, leader of India's separatist group, in Kathmandu, his interlink to the
money laundering has been accounted. The arrestment of Indian fugitives and members of terrorist groups in Nepal's land shows that they are creating an
internal security threat to the country. According to Baral (2018), cross-border crimes and terrorism create tension between Nepal and India. India always
proposed mutual cooperation to tackle such problems. However, Nepal has proved that it is not a safe place for organized criminals and terrorist groups.
The security forces have their grave concern on the activities of the separatist, both violent and nonviolent, in Terai. Baral and Shah (2018) mention that
armed groups based on the Terai with separatist outlook are launching violent activities. The transnational organized criminal groups misuse such outfits to
accomplish their vested interests. The members of such groups are vulnerable to crime and likely a threat to the internal security.
Governmental Intervention
The two countries have deployed the border police to guard the border-line; moreover, other security forces are also active formally and informally. India has
deployed Border Patrol Force [Seema Surakshya Bal (SSB)] on the entire Nepal-India borders establishing her armed posts in about three kilometers gap
whereas Nepal has deployed Armed Police Force setting her posts in between 15-20 kilometres gap (Baral & Pyakurel, 2013). The aims of both armed police
forces are to stop smuggling, prevention of criminals from passing the border, and prevention of girls trafficking, the transaction of fake currencies, arms and
amenities and security of customs checkpoints. Despite the increments of the number of the border force in the borderline and tightening the regulation
procedures at the checkpoints, smuggling as well as illegal cross-border trade has increased. On the other hand, informal extradition of criminals, who run and
hide on the other side of the border, has been practiced. However, the results of the regulation and the extradition have not found to be efficient than its
prediction to combat cross-border crime.
The characteristics of the Indo-Nepal borderline and borderlands has rapid changing dynamics. The government has increased the security budget to curb the
crime rather than social development. Till 2014, the Nepalese government had established 21 Armed Police Force (APF) border security offices and 48 border
outposts to tackle cross-border crime. In view of checking possible infiltration of criminal elements and curbing cross-border crimes, Nepal has prepared to
strengthen security presence along its international border with India and China. According to APF, there are a total of 91 BOPs along the border with India
and 15 companies in along the border with China. The government plans to increase the number of BOPs to around 125 along the border with India and
additional 12 BOPs along the Chinese border in the north. Currently, there are only two APF outposts — Tatopani and Rasuwagadhi. The number of BOPs will
be increased in each of these districts based on security sensitivity. APF, Nepal is planning to set up 200 BOPs along International Border in the next two years.
Also, it has launched operations in Terai to curb the small arms and related crimes. APF conducted a joint operation with Nepal police in Terai region beside it
has done the single-handed operation to curb small arms-related crime. 6 Further, it has prioritized surprise checkpoints and vigorous mobile as well as foot
patrols.
According to KC (2018), the organized crime organizations and their activities create further threats to the security of the South Asian region which, in turn,
fuels terrorist groups. Hence, Nepal alone cannot solve the problem of such crimes. However, Nepal implements the plan and policies based on the
strengthening of security forces.
Regarding the investment in border security and deployment of security force along Nepal-India border and Nepal-China border, APF has seized immense
illegal goods through the borderline. In 2074/75, the APF seized goods of estimated price of 250 million. However, the seized goods are nominal in comparison
to the real figure of smuggled goods through the borderline of Nepal. In Fiscal Year 2074/75, Nepal Police has seized 178 kg, estimated price of NPR 890
million, gold smuggled in the country which is generally smuggled towards India. The increasing numbers of organized crime cases filed in the police also
reflects the magnitude of crime in the borderline. Despite the tight security and increment of the deployment of the security force, the cross-border crime is
increasing. Hence, increasing the deployment of the security force is not the ultimate solution. While tightening the security and increment of the deployment
of the security force, the government has to focus on various sectors that affect the cross-border crime.
Conclusion
Nepal, the land between two economically and politically powerful nations: India and China, has the geographical significance which provides feasibility to the
cross-border crime that also affects the internal security of the country. Legal and illegal goods and money flow through the land and air route of Nepal which
leads the country towards the bridge of criminal activities prior in between India and Nepal. Various forms of cross-border crimes enhancing organized crime
in Nepal are accounted. In several contexts, the motivation of the crime is not only limited to the monetary interest but also to the political interest. Nepal
India and China are facing the challenges of organized crime which has strong networks throughout the region. The Indo-Nepal border regions are highly
affected, facing cross-border criminal activities, especially smuggling and small arms-related crimes.
The supply and demand context plays a vital role in cross-border criminal activities. The context shows Nepal as the demand side and India as the supply side
of the goods illegally smuggled through the land route for most of the smuggled goods. On the other hand, illegal goods smuggle in both the sides depending
on their market and opportunities for vested interests. The changing political and economic circumstance in the region, as well as the geographical
opportunities, develops the fertile grounds for the organized criminal groups in Nepal.
Organized cross-border crimes become a threat to the internal security of the country. In several contexts of cross-border crime, the crime operator misuses
Nepal's land as a transit point for transporting illegal goods such as drugs, endangered species, gold and even human beings to neighbor countries as well as
third countries. Organized criminals have been misusing Nepal as a bridge between India and China for their illegal activities.
Illegal ultra-forces and the separatists are active in the Indo-Nepal border areas. They have vested political interests with their association to the organized
criminal groups. The increasing numbers or organized crime cases filed in the police stations also reflect the magnitude of crime in the borderline. The
government implements the policy of tightening security and increment of the deployment of the security force. In spite of such policies, the cross-border
crime is increasing that shows the deployment of the security force is not an ultimate solution.
Transnational interrelationship and movement are playing a role of a catalyst in the world which also leads criminal activities throughout the world. Border,
whether they are open or closed are more or less porous due to organized crime rooted around the world, especially in the border regions. Combating cross-
border crime is a tough task because of strong networks among smugglers, political leaders, security personnel, bureaucrats and gangsters. Interestingly, the
new forms of technology are beneficial for organized criminals. Such rackets operate their activities in such a way that they do not need borderland. Regarding
the cross-border criminal activities in Nepal's frontiers, new challenges are evolving. Hence, Security is the prime field of concerning issues. Security cannot be
overlooked in the name of economic development and temporary prosperity. On the other hand, internal security is essential for the economic growth of a
nation. Unless and until the border is safe and strengthen Nepal cannot gain its prosperity.
3.2.3 Cybercrime and Nepal
Introduction
Cybercrime is the emerging crime around the globe which has unique modus operandi and can be committed being domiciled in any part of world against
individual/institution situated in other part. Technocrats are well affirmed with the threat of cybercrime so are constantly working to develop new technology
so as to prevent cybercrime, i.e. the world stands at a crossroads for developing defense mechanisms against it. Most cybercrimes, however, do not involve
violence but rather greed, pride, or play on some character weakness of the victims. It is difficult to identify the culprit, as the net can be a vicious web of
deceit and can be accessed from any part of the globe. For these reasons, cybercrimes are considered as "white-collar crimes". Furthermore, cybercrime
produces high returns at low risk and (relatively) low cost for the perpetrators. The rate of return on cybercrime favors the criminal; the incentive is to steal
more. The rate of return per victim on cybercrime can be very low, but because the costs and risks of engaging in it are even lower, cybercrime remains an
irresistible criminal activity.
Cybercrime can generally be divided into two broad categories – crime that are facilitated by computers or the internet, and crimes against computers or
computer system. Cyber-crime is an extension of traditional crime but it takes place in cyberspace -- the nonphysical environment created by computer
systems. By utilizing globally connected phone systems and the world’s largest computer network, the Internet, cyber-criminals are able to reach out from just
about anywhere in the world to just about any computer system, as long as they have access to a communications link. Ability of world wide access has
resulted into territory-less dimension of cybercrime. Cybercrime, therefore, has an international aspect that creates many difficulties for nations that may wish
to halt it or simply mitigate its effects. Moreover, cyber-crime is generally understood as the use of a computer-based means to commit an illegal act. One
typical definition describes cyber-crime as "any crime that is facilitated or committed using a computer, network, or hardware device." As cybercrime is not
bound by physical borders the criminal can found anywhere around the world – which itself has made cybercrime as universal natured crime.
What are Cybercrime?
The criminal activities to constitute as cybercrime is itself not clearly developed and there is no exhaustive list providing all set of cybercrime. There are
number of definition of cybercrime which has separate specification of crime categorizing as cybercrime. The scope of criminal activities and their social
consequences can be summarized by a typology of computer-related crime that comprises of two sets of crimes i.e., conventional crimes, in which computers
are instrumental to the offence, such as online attacks on computer networks, destruction of databases etc. and conventional criminal cases in which evidence
exists in digital form, such as cyber-vandalism and terrorism, insertion of viruses, worms, defamation, extortion, etc.
Similarly, McCusker has identified number of offences in three sets as cybercrime threats, i.e., offences against the confidentiality, integrity and availability of
computer data and systems (via activities such as hacking, deception, interception and espionage), computer-related ‘traditional’ crimes (fraud and forgery),
content-related computer offences (such as website defacement and dissemination of false information) and offences relating to the infringement of
copyright and related rights (such as the unauthorized reproduction and use of programs and databases).
In 2013, United Nations Office of Drugs and crime, making an attempt to define cybercrime has categorized cybercrime broadly into three areas, i.e. (i) Acts
against the confidentiality, integrity and availability of computer data or systems, (ii) Computer‐related acts for personal or financial gain or harm and (iii)
Computer content‐related act. Cybercrime does not have universally accepted definition and it varies from academic scholars to the legislation.
Furthermore, the tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders as of the year 2000 has categorized five offenses
as cyber-crime, viz., unauthorized access, damage to computer data or programs, sabotage to hinder the functioning of a computer system or network,
unauthorized interception of data to, from and within a system or network and computer espionage.
European Convention on Cybercrime, 2001 has substantially enlisted four sets of cybercrime which shall be discussed in greater detail in later section, i.e.,
offence against confidentiality, integrity and availability of computer data and systems– which includes crime such as illegal access, illegal interception, data
interference, system interference and misuse of devices, computer related offences – which includes computer related forgery and fraud, content related
offences – which includes offence related to child pornography and infringement of copyrights and related rights and ancillary liability – which includes offence
of attempt, aiding or abetting and corporate liability.
Different actions which may amount to crime have been broadly classified into three categories. Firstly, cybercrimes where computer is used as a target which
includes offences such as sabotage of computer systems or computer networks or operating system and program, theft of data or information or intellectual
property such as software or marketing information, blackmailing based on information gained from computerized files such as personal history, sexual
preferences, financial data, etc. and Illegal access. Secondly, cybercrimes where computer is an instrument facilitating the crime includes offences such as
software piracy, counterfeiting, copyright violation of computer programs, theft of technological equipment and illegal sale of duplicate CD. Thirdly,
cybercrimes where computer is incidental to other crimes which includes those crime in which computer is not essential for the crime to occur, but
computerization does help in the incidence of crime by processing of huge amount of information and makes the crime more difficult to be traced and
identified – example money laundering, unlawful banking transactions
Thus, from discussion made in this chapter, any activity that uses computer as an instrumentality, target or a means for perpetrating further crime, falls within
the ambit of cybercrime. As stipulated above, definitions and nature of cybercrime have been focused on the functional part rather than a universally
accepted legal definition. The sine qua non for cybercrime is that there should be an involvement of virtual cyber medium (computer) at any stage of crime.
From the scholars view and legal propositions, there are some of peculiar features of cybercrime, viz., cybercrime is global phenomenon which does not have
any territorial barriers or jurisdictional restrictions, there is non-existence of any physical evidence, evidence of cybercrime is in digital format identified only
by trained and skilled person, perpetrator of cybercrime largely be technocrats, Furthermore cybercrime is new approach identified by perpetrator such as
electronic vandalism, transnational crime, electronic money laundering, counterfeiting, etc. which includes computer network attack as well as electronic
approach of committing traditional crimes and there is non-requirement of disclosure of identity – can manage anonymity
At the outset, it is necessary to seek distinction between “true” cybercrime (i.e. dishonest or malicious acts which would not exist outside of an online
environment, or at least not in the same kind of form or with anything like the same impact), and crime which is simply “e-enabled” (i.e. a criminal act known
to the world before the advent of the worldwide web, but which is now increasingly perpetrated over the Internet).
Nepalese Legal Regime governing Cybercrime
ELECTRONIC TRANSACTION ACT, 2008
There was no separate and independent law related to computer crimes prior to the enactment of the Electronic Transaction Act, 2008 (hereinafter referred
to as 'ETA') and all the computer related crimes were tried under the traditional law of crimes, i.e. Country Code and sector specified criminal laws. Because of
increasing use of computer in commission of different crimes and commission of crime against computer, it posed practical problem for the regulating
agencies to regulate cyberspace transaction of citizens. ETA was promulgated by parliament of Nepal recognizing the expediency to make, legal provision for
authentication and regularization of the recognition, validity, integrity and reliability of generation, production, processing, storage, communication and
transmission system of electronic records by making the transactions to be carried out by means of electronic data exchange or by any other means of
electronic communications, reliable and secured. Furthermore, the act was promulgated for controlling the acts of unauthorized use of electronic records or
of making alternation in such records through the illegal manner.
Under definition clause of the act, certain terminology related to cybercrime has been defined which includes definition of computer, computer database,
computer network, data, access, electronic record, computer accessory and so on. Major part of ETA governs provision related to electronic record and digital
signature, controller and certifying authority, digital signatures and certificates, subscriber's duties and rights, government use of digital signature, network
service and constitution of tribunals. However, chapter 9 under ETA explicitly provides provision related to offence relating to computer.
Broadly, ETA has criminalized eleven types of act as cybercrime where the act has mixed the offences related to computer and offence related in obtaining
certification license for digital signature under the same heading of 'offence related to computer'. In context of this dissertation, the crime that has been
included as cybercrime are : to pirate, destroy or alter computer source code, unauthorized access in computer materials, to damage to any computer and
information system, publication of illegal materials in electronic form, to disclose confidentiality, to commit computer fraud, abetment to commit computer
related offence and accomplice of offence.
In more detail, section 44 of ETA has criminalized the act of piracy, destruction or alteration of computer source code. If any person knowingly or withal fid
intention, pirates, destroys, alters computer source code to be used for any computer, computer program, computer system or computer network or cause,
other to do so, shall be liable with punishment with imprisonment not exceeding three years or with a fine not exceeding two hundred thousand rupees or
with both. Clarification of the section 44 has provided that 'computer source code' means the listing of programs, computer command, computer design and
layout and program analysis of the computer resources in any form.
Section 45 of ETA has criminalized the act of unauthorized access in computer material. If any person with an intention to have access in any program,
information or data of any computer, uses such a computer without authorization of the owner of or the person responsible for such computer or even in the
case of authorization, performs any act with an intention to have access in any program, information or data contrary to from such authorization, such a
person shall be liable to the punishment with the fine not exceeding two hundred thousand rupees or with imprisonment not exceeding three years or with
both depending on the seriousness of the offence.
Section 46 has criminalized the act of damaging any computer and information system. If any person knowingly and with amala fid intention to cause wrongful
loss or damage to any institution destroys, damages, deletes, alters, disrupts any information of any computer source by any means or diminishes value and
utility of such information or affects it injuriously or causes any person to carry out such an act, such a person shall be liable to the punishment with the fine
not exceeding two thousand rupees and with imprisonment not exceeding three years or with both.
Section 47 has criminalized the act of publication of illegal materials in electronic form. Although constitution of Nepal has guaranteed freedom of expression,
ETA limits the freedom of expression. Pursuant to ETA, if any person publishes or displays any material in the electronic media including computer, internet
which are prohibited to publish or display by the prevailing law or which may be contrary to the public morality or decent behavior or any types of materials
which may spread hate or jealousy against anyone or which may jeopardize the harmonious relations subsisting among the people of various castes, tribes
and communities shall be liable to the punishment with the fine not exceeding one hundred thousand rupees or with the imprisonment not exceeding five
years or with both.
Section 48 has criminalized the act of disclosure of confidentiality. If any person who has an access in any record, book, register, correspondence, information,
documents or any other material under the authority divulges or causes to divulge confidentiality of such to any unauthorized person, he/she shall be liable to
the punishment with a fine not exceeding ten thousand rupees or with imprisonment not exceeding two years or with both, depending on the degree of
offence.
Section 52 of ETA has criminalized the act of commission of computer fraud. If any person with an intention to commit any fraud or any other illegal act,
creates, publishes […] of acquires benefit from the payment of any bill, balance amount of any one's account, any inventory or ATM card in connivance of or
otherwise by committing any fraud, amount of the financial benefit so acquired shall be recovered from the offender and be given to the person concerned
and such an offender shall be liable to the punishment with a fine not exceeding one hundred thousand rupees or with an imprisonment not exceeding two
years or with both.
Section 53 of ETA has criminalized abetment to commit computer related offence. A person who abets other to commit an offence relating to computer under
the act or who attempts or is involved in the conspiracy to commit such an offence shall be liable to the punishment with a fine not exceeding fifty thousand
rupees or with imprisonment not exceeding six months or with both, depending on the degree of the offence. Section 54 of the ETA has criminalized
punishment to the accomplice. A person who assists other to commit any offence under the act or acts as accomplice, by any means shall be liable to one half
of the punishment for which the principal is liable.
Furthermore, the act stipulated extra-territorial jurisdiction in case of cybercrime. If any person commits any act which constitutes offence under the act and
which involves the computer, computer system or network system located in Nepal, even though such an act is committed while residing outside Nepal, a case
may be filed against such a person and shall be punished accordingly. Furthermore, for the offence committed by a corporate person, such an offence shall be
deemed to have been committed by a person who was responsible as chief for the operation of the corporate body at the time of committing such an offence.
However, if the person acting as chief proves that such an offence was committed without his/her knowledge or that he/she has exercised all reasonable
efforts to prevent such and offence, he/she shall not be liable to the guilty. The act under cybercrime may also deem to be criminalized under other laws. If
any act deemed to be an offence under ETA and also deemed to be offence under the other laws prevailing, it shall not be deemed to have been hindered by
ETA to file a separate case and punish accordingly -- for example the online defamation can be tied under laws for defamation, online prostitution can be filed
under laws prohibiting prostitution, online gambling under laws prohibiting gambling in Nepal and so on.
BANKING OFFENCE AND PUNISHMENT ACT, 2008
Banking Offence and Punishment Act, 2008 is the law governing banking operation and transaction. Section 6 of the act has prohibited obtaining or making
payment by way of abuse or unauthorized use of a credit card, debit card, automated teller machine (ATM) card or other electronic means. The person
committing this crime shall be punished with recovery of amount and punishment up to five years depending on the amount of money.
CHILDREN'S ACT 1992
Children's Act, 1992, promulgated to protect and promote children's rights, to far extent has addressed the prohibition of child pornography broadly. Section
16(2) of the act prohibits making photograph of child for the purpose of engaging a child in immoral profession. Section 16(3) prohibits publication, exhibition
or distribution of photograph or personal events or description of a child tarnishing the character of such child. Section 53 of the act provides punishment for
the person committing such crime including seizure of the photograph and reasonable compensation to children for adverse effect on character of child.
SOME PUBLIC (CRIME AND PUNISHMENT) ACT, 1970
Some Public (Crime and Punishment) Act, 1970 has prohibited certain action amounting it to be as public crime which includes commission of act to make
obscene show by using obscene speech, word or gesture in public place, to print or publish any obscene materials using obscene language or by any word or
picture which denotes obscene meaning; or to exhibit or sell or distribute such obscene publication in public place other than the purpose of public health or
health science, to threat or scold or tease or to commit any undue act or to express any undue thing to anyone through telephone, letter or any other means
or medium with keeping intention to intimidate, terrorize or cause trouble or to insult or defame or harass to him/her. The act has stipulated penalty for
commission of crime as stipulated above with punishment of fine up to ten thousand rupees and compensation to the victim.
THE PATENT, DESIGN AND TRADEMARK ACT, 1965
The Patent, Design and Trademark Act, 1965 has prohibited copy or use or cause to use in the name of others trademark without transforming the ownership
or permission which incase committed shall be fined with amount not exceeding one hundred thousand rupees and confiscation of the goods.
COPYRIGHT ACT, 2002
Copyright Act, 2002 has addressed the crime related to copyright where the act has protected copyright of expression of ideas including computer program.
The act has also stipulated punishment for breach of copyright protection such as reproduction of copies of work, advertise or publicize by copying a work
belonging to another person with a motive of taking advantage of reputation gained by that work, make work of other by changing the form and language of
work with motive of deriving economic benefit , to import/produce/rent any equipment or device prepared with intention of circumventing any device and
other act related with infringement of copyright. Furthermore, the act has prohibited importation of copies of work or sound recording, either made in a
foreign country or sourced otherwise, into Nepal for business purpose shall not be permitted if preparation of such copies would be considered illegal if they
were prepared in Nepal. The act has prescribed punishment to perpetrator with monetary fine, imprisonment and compensation.
CONSUMER PROTECTION ACT, 1998
Consumer Protection Act, 1998 has prohibited unfair trade practice where the act defines "Unfair trade practices" as the sale or supply of consumer goods or
services by making false or misleading claims about their actual quality, quantity, price, measurement, design, make etc., or the sale or supply of consumer
goods produced by others by affecting their quality, quantity, price, measurement, design, make, etc.
OTHER
There are certain sector specific laws which can be invoked in case of commission of such crime in online world which can also be defined as cybercrime if in
case committed via online or using computer or network. Practicing Black Marketing in online trade is to be regulated by Black Marketing and some other
social offence and punishment act, 1975; online Gambling is addressed by Gambling Act, 1963; online practice of prostitution is addressed by Human
Trafficking and Transportation (Control) Act, 2007 where section 6 prohibits prostitution; online defamation is addressed by Libel and Slander Act, 1959 where
libel/defamation is criminalized with punishment; online lotteries are to be regulated by Lotteries Act, 1968.
Threat of Cybercrime in Nepal
Nepal is not exceptional territory for observing cybercrime threats. Growth in internet and computer users, development of technology, and widespread use
of computer amongst people has resulted in the use of computer for commission of crime. The rapid development of computer connectivity and role of the
internet in the emergence of new e-commerce has resulted in growth of cybercrime in Nepal which has compelled national government to address the need
for regulation and security on the 'information superhighways'. The new opportunities created in cyberspace have enhanced the capacity of individual
offenders and criminal networks that have emerged to exploit vulnerabilities in the new economy.[80]Making an observation of existing pattern and trend of
cybercrime in Nepal, threat of cybercrime is still likely to grow in coming years because of certain factors. Firstly, there is increasing business that are potential
victims of cyber-crime (such as e-commerce, online banking, online store), secondly there is rise in number of potential perpetrators, thirdly, because of lack
of precaution the cyber world is being used by general people, fourthly, the law has not been adequately amended as a need of time, and fourthly,
investigation and lack of cyber forensic has diminished the chance of being caught. Compared to last few years, the pattern of cybercrime has been changed
today and that will certainly be different in upcoming years. Previously, the trend of cybercrime in Nepal was limited to email blackmail, SMS blackmail, illicit
publication in online world, data piracy, etc. But now the perpetrator has been committing different practices such as unauthorized access of data, phishing,
online fraud, online sale of counterfeit products, online illegal activities such as prostitution. This part of the dissertation aims to focus on present situation of
cybercrime in Nepal followed by the perspective problems that may arise in Nepal as cybercrime.
Present Scenario
In following section of this dissertation, major cases reported and data provided by authorized agency has been discussed for examining the present scenario
of cybercrime and its threat in Nepal.
CASES
In this part, certain reported cases are discussed which exemplifies the existing pattern of cybercrime in Nepal. These cases are collected from the national
daily newspaper where media constantly has been reporting commission of various instances of cybercrime in Nepal. Although there are many cases reported
by newspaper, the author has attempted to take few similar cases for exemplification of the tendency and pattern of cybercrime.
i. Defamation online or Internet harassment
Nepal Police have caught a 27 -year-old man, who allegedly impersonated a girl in a Facebook account. Acting on behalf of the girl, perpetrator posted vulgar
comments and nude photographs to different men including her friends.
Similarly, a victim lodged a complaint with police on August 1, 2011, demanding an action, after he was tagged to nude photographs and online porn links.
Likewise, police arrested perpetrator in a case where the mobile number of a girl was publicly displayed on a fake account created in her name, soliciting
sexual relationships. She made complaint to police, when she started getting telephone calls from strangers, asking about “rates per night".
ii. Unauthorized Access / Hacking
On March 18, 2013, Nepal Police arrested Naresh Lamgade of Anarmani, Jhapa for allegedly hacking into the accounts of Nabil Bank’s customers by creating a
fake website of the bank. The perpetrator first sent email messages to Nabil’s e-banking customers asking them to change their security codes and providing
links to do so. Whoever clicked on the link was taken to the fake e-banking website of Bank. When its account holders entered their identity and password,
they unsuspectingly revealed their private login details to Lamgade. Similar cases were reported to Police as crime committed for e-banking of Nepal
Investment Bank, Bank of Asia in Nepal.
3.2.4 Narcotic
Provision of Narcotic Drugs(Control) Act, 2033 B.S
According to this act, Narcotic drugs means
1. Cannabis or marijuana
2. Medicinal cannabis or marijuana
3. Opium
4. Processed opium
5. Medicinal opium
6. Plants and leaves of coca, and any substances to be made by mixing opium and extract coca, includes mixture or salt.
7. Any natural or synthetic narcotic drug or psychotropic substances and their salts and other substances as may be specified by the Government of Nepal
by a notification published in the Nepal Gazette, from different time periods.
Illegal Acts according to Narcotic Drugs(Control) Act, 2033 B.S
1. Cultivate, produce, prepare, purchase, sell, distribute, export or import, conduct any trafficking, store, or consume cannabis/marijuana,
2. Cultivate opium or coca or produce opium or coca leaves or other narcotic drugs,
3. Manufacture or prepare narcotic drugs,
4. Sell or distribute narcotic drugs,
5. Export or import narcotic drugs,
6. Purchase, store, possess, or conduct any trafficking of narcotic drugs,
7. Consume narcotic drugs other than cannabis or marijuana.
An exception to the illegal acts
The chemical substance to be used for the preparation of narcotic drugs from among the medicines defined in the Single Convention on Narcotic Drugs, 1961
may be exported, imported, stored, conducted trafficking, sold, distributed, and used only in the quantity as prescribed by the Chief.
Any person may use narcotic drugs under certain circumstances:
1. Purchase and consumption of narcotic drugs by any person in the recommended dose from any licensed shop on the recommendation of any recognized
medical practitioner for the purpose of medical treatment.
2. Consumption of narcotic drugs by persons belonging to the prescribed categories in prescribed doses.
Duty of Medical Practitioner
While prescribing narcotic drugs, the medical practitioner shall not prescribe them to those who do not need them or prescribe more than what the
requirement is even to those to whom it is required.
Authority Empowered to Issue Warrants
The Narcotic Drugs Control Officer may issue warrants for the arrest and search of any person if he/she has reason to believe that such person has committed
or is about to commit any offense punishable under this Act.
The Narcotic Control Officer may issue orders for conducting a search of any building, land, vehicle, or any other place if he/she has reason to believe that any
person connected with the offense has been hiding in such building, land, vehicle, or other place or that any narcotic drug has been kept therein.
Law Related to Drug Trafficking in Nepal- Provision of Punishment
1. Anyone who consumes cannabis/ marijuana shall be punished with imprisonment for a term of up to one month or with a fine of two thousand rupees.
2. Anyone who cultivates twenty-five cannabis/ marijuana plants shall be punished with imprisonment for a term of three months or with a fine of three
thousand rupees.
3. Anyone who cultivates more than twenty-five cannabis/ marijuana plants shall be punished with imprisonment for a term of three years or with a fine
from five thousand to twenty-five thousand rupees.
4. Anyone who consumes opium, coca, or any other narcotic drugs made therefrom shall be punished with imprisonment for a term of up to one year or
with a fine up to ten thousand rupees.
5. Anyone who addicts any natural or synthetic narcotic drugs and psychotropic substances and their salt and other substances, as specified by the
Government of Nepal by a notification published in the Nepal Gazette, from time to time, shall be punished with imprisonment for a term up to two
months and with a fine up to two thousand rupees or both.
6. With imprisonment for a term from two years to ten years and with a fine from one hundred thousand rupees to twenty hundred thousand rupees for
anyone who commits any other prohibited acts other than those mentioned in Clause (5) above.
Anyone who produces, prepares, purchases, sells and distributes, exports or imports, traffics and stores, cannabis/ marijuana shall be punished
1. With imprisonment for a term of up to three months or with a fine of up to rupees three thousand, if it is up to fifty grams.
2. With imprisonment for a term from one month to one year and with a fine from one thousand to five thousand rupees, if it is within fifty grams to five
hundred grams.
3. With imprisonment for a term from six months to two years and with a fine from rupees two thousand to ten thousand, if it is within five hundred grams
to two kilograms.
4. With imprisonment for a term from one year to three years and with a fine from rupees five thousand to twenty-five thousand, if it is within two
kilograms to ten kilograms.
5. With imprisonment for a term from two years to ten years and with a fine from fifteen thousand to rupees one hundred thousand, if it is ten kilograms or
more than this.
Anyone who cultivates opium poppy or coca bush shall be punished
1. With imprisonment for a term of one year to three years or with a fine of five thousand rupees to twenty-five thousand rupees, in case of the cultivation
of twenty-five plants.
2. With imprisonment for a term from three years to ten years and with a fine from twenty-five thousand rupees to two hundred thousand rupees in case of
cultivation of more than twenty-five plants.
Anyone who commits any other prohibited acts other than consumption of opium, coca, or any other narcotic drugs made therefrom and cultivation of
such plants shall be punished
1. With imprisonment for a term from five years to ten years and a fine from five thousand rupees to twenty-five thousand rupees for anyone doing
transactions up to twenty-five grams.
2. With imprisonment for a term from ten years to fifteen years and a fine from seventy thousand rupees to two hundred thousand rupees for anyone
doing transactions from twenty-five grams to hundred grams.
3. With imprisonment for a term from fifteen years to life imprisonment and with a fine from five hundred thousand rupees to twenty-five hundred
thousand for anyone doing a transaction of any quantity more than one hundred grams.
For Answers and Questions
Can police search or seize narcotic drugs without a warrant?
If there is reason to believe that any offense punishable under this Act is being committed in any building, land, vehicle, or other place and that the offender
may escape or that evidence of the offense may disappear, the Narcotic Drugs Control Officer or police personnel at least up to the rank of Assistant Sub-
Inspector of Police may, after making a record to that effect, take any of the following actions at any time:-
(a) To enter into such building, land, vehicle, or any other place,
(b) To break the gate or resort to other necessary actions if any obstruction is caused to such entry,
(c) To seize all narcotic drugs and other materials connected with the offense, and any other document which may serve as evidence,
(d) To detain and search any person and if necessary, arrest him/her if there is a reason to suspect that such a person has committed an offense.
What is the punishment for the repeated offense in a drug case?
In case any person who had been punished once under this Act again commits any other offense mentioned hereunder, he/she shall be punished for each
subsequent offense, in addition to the prescribed punishment, with imprisonment for a term which may extend up to five years and with a fine up to one
hundred thousand rupees.
The consumption of narcotic drugs in the past few years has been trending in Nepal. The complicated nature of the crime related to narcotic drugs invites the
government to control it in the various stages and processes such as production, import, sale, and consumption. In Nepal, the Narcotic Drugs Control Act, 2033
(1976), is the major law to control the production, import, sale and consumption of drugs.
Definition of narcotic drugs
Section 3 of Narcotic Drugs Control Act includes the following in the definition of narcotic drugs:
Cannabis/marijuana,
Medicinal cannabis,
Opium,
Processed opium,
Medicinal opium,
Plants and leaves of coca, and
Any substances prepared by mixing opium and extract coca, including mixture.
Acts of crime of narcotic drugs
Section 4 of the Narcotic Drugs Control Act regards the following acts as a crime of narcotic drugs, which is punishable as per law.
The acts prohibited by Narcotic Drugs Control Act are listed below:
Cultivation, production, preparation, buying, selling, export, import, trafficking, sortation or consumption of cannabis/ marijuana,
Cultivation of opium or coca or production of opium or coca leaves or other narcotic drugs,
Manufacturing or preparing narcotic drugs,
Selling and distributing narcotic drugs,
Export or import of narcotic drugs,
Purchasing, storing, processing or conducting any trafficking of narcotic drugs
Jurisdiction and burden of proof
An offence related to narcotic drugs is organised crime and has extra-territorial jurisdiction. The Narcotic Drugs Control Act is applicable to all Nepali citizens
or foreigners, who conduct the transaction, export or import of narcotic drugs from or into Nepal against the aforementioned act while residing in Nepal, as
mentioned in section 2 of the act.
Further, section 12 of the act states the burden of proof is on the defendant, which means that in case any narcotic drug is found to be in possession of any
person or if any evidence is found that cannabis/marijuana, opium or coca is being cultivated or had been cultivated on any farm of a person or if any
substance that has been partly processed for the manufacture or production of any narcotic drug or any residue left after such product is found to be in
possession of any person, such person has the burden of proof to the effect that he/she has obtained or possessed such substance under law. If he/she fails to
do so, he/she is deemed to have committed an offence punishable under the Narcotic Drugs Control Act.
Punishment for the offences
Anyone who consumes cannabis/ marijuana shall be punished with imprisonment for a term of up to one month or with a fine of up to Rs 2,000.
Anyone who cultivates up to 25 cannabis/ marijuana plants shall be punished with imprisonment for up to three months or with a fine of up to Rs 3,000.
Anyone who cultivates more than 25 cannabis/ marijuana plants shall be punished with imprisonment for a term of three years or with a fine from Rs 5,000 to
Rs 25,000.
Anyone who produces, prepares, purchases, sells and distributes, exports or imports, trafficks and stores cannabis/ marijuana shall be punished as follows:
 With imprisonment for a term of up to three months or with a fine of up to Rs 3,000, if it is up to 50 grams.
 With imprisonment for a term from one month to one year and with a fine from Rs 1,000 to Rs 5,000, if it is between 50 and 500 grams.
 With imprisonment for a term from six months to two years and with a fine from Rs 2,000 to Rs 10,000, if it is between Rs 500 grams and 2 kg.
 With imprisonment for a term from one year to three years and with a fine from Rs 5,000 to Rs 25,000, if it is between 2 and 10 kg.
 With imprisonment for a term from two years to ten years and with a fine from Rs 15,000 to Rs 100,000, if it is 10 kilograms or more than this.
Anyone who consumes opium, coca or any other narcotic drugs made therefrom shall be punished with imprisonment for a term of up to one year or with a
fine of up to Rs 10,000.
Anyone who cultivates opium poppy or coca bush shall be punished as follows:
 With imprisonment for a term of one year to three years or with a fine of Rs 5,000 to Rs 25,000, in case of the cultivation of up to 25 plants
 With imprisonment for a term from three years to ten years and with a fine from Rs 25,000 to Rs 100,000 in case of cultivation of more than 25
plants
Anyone who commits any other prohibited acts other than consumption of opium, coca, or any other narcotic drugs made therefrom and cultivation of such
plants shall be punished as follows:
With imprisonment for a term from five years to ten years and with a fine from Rs 5,000 to Rs 25,000 for anyone doing a transaction of the drug up to 25
grams
 With imprisonment for a term from 10 years to 15 years and with a fine from Rs 70,000 to Rs 200,000 for anyone doing a transaction of the drug
from 25 grams to 100 grams.
 With imprisonment for a term from 15 years to life imprisonment and with a fine from Rs 500,000 to Rs 2.5 million for anyone doing a transaction of
the drug in any quantity more than 100 grams.
Anyone who consumes any natural or synthetic narcotic drugs and psychotropic substances and their salt and other substances, as specified by the
Government of Nepal by a notification published in the Nepal Gazette from time to time, shall be punished with imprisonment for a term up to two months
and with a fine up to Rs 2,000 or both.
3.2.5. Human Trafficking
The Government of Nepal does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. The
government demonstrated overall increasing efforts compared with the previous reporting period, considering the impact of the COVID-19 pandemic, if any,
on its anti-trafficking capacity; therefore Nepal remained on Tier 2. These efforts included increasing investigations and identifying more trafficking victims.
Nepal’s Anti-Human Trafficking Bureau (AHTB) developed a training manual for investigating trafficking crimes. In addition, the government introduced a new
policy to allow previously unregistered migrant workers to regain legal registration to work abroad. However, the government did not meet the minimum
standards in several key areas. The government’s laws do not criminalize all forms of labor trafficking and sex trafficking, and the government did not finalize
its long-pending draft amendments. The government convicted fewer traffickers and concerns continued about official complicity in trafficking crimes. The
government did not finalize pending SOPs for victim identification and did not report if any identified victims were referred to services. Officials’ identification
of, and protection for, male trafficking victims and transnational labor trafficking victims remained inadequate. The government continued to allow Nepali
migrant workers to pay recruitment fees and related expenses with few measures to protect migrants from exploitation.
PRIORITIZED Recommendations:
Amend the Human Trafficking and Transportation (Control) Act (HTTCA) to criminalize all forms of sex trafficking and labor trafficking, in line with the 2000 UN
TIP Protocol; implement victim-witness protection provisions; and remove a provision that allows the judiciary to fine victims if they fail to appear in court.
* Increase investigations and prosecutions, including allegedly complicit officials, and seek adequate penalties for convicted traffickers, which should involve
significant prison terms.
* Constitute Local Coordination Committees on Human Trafficking (LCCHTs) in all localities.
* Establish SOPs for law enforcement to investigate human trafficking cases, including referrals between agencies.
* Finalize SOPs for victim identification while training front-line responders to increase referrals of trafficking victims to services.
* Expand availability and capacity of victim care, including shelter and repatriation, for all victims, especially men and boys and workers exploited abroad.
* Increase staff, training, and resources to the Department of Foreign Employment (DoFE) to facilitate full implementation and monitoring of the low-cost
recruitment policy, and take steps to eliminate recruitment or placement fees charged to workers by Nepali labor recruiters.
* Engage destination country governments to create rights-based, enforceable agreements that protect Nepali workers from human trafficking.
* Consistently enforce strong regulations and oversight of labor recruitment agencies and sub-agents, and hold fraudulent labor recruiters criminally
accountable.
* Significantly increase monitoring of children’s homes and orphanages and hold accountable those that do not meet the government’s minimum standards of
care.
* Provide documentation to stateless individuals, internationally-recognized refugees, and asylum-seekers to allow them to work, attend school, and access
social services.
Prosecution
The government maintained anti-trafficking law enforcement efforts. The 2007 HTTCA criminalized some forms of sex trafficking and labor trafficking. The
HTTCA’s definition of trafficking was inconsistent with the international definition of trafficking. It limited the definition of human trafficking to the purchase
or selling of a person and to causing another person to go into prostitution; did not include a demonstration of force, fraud, or coercion as an essential
element of the base offense; and did not explicitly address forced labor. The law separately defined “human transportation” as the taking of a person from
their home or place of residence through force, fraud, or coercion for the purpose of prostitution or keeping a person as a slave or bonded laborer. The
HTTCA prescribed penalties ranging from five to 20 years’ imprisonment and a fine, which were sufficiently stringent and, with respect to sex trafficking,
commensurate with those prescribed for other serious crimes, such as rape. The 2017 Labor Act, which is enforced by specialized labor courts, criminalized
forced labor and prescribed penalties of up to two years’ imprisonment, a fine of up to 500,000 Nepali rupees (NPR) ($3,780), or both. Additionally, the 2002
Bonded Labor (Prohibition) Act abolished bonded labor and prescribed civil penalties of a fine between 15,000 NPR and 25,000 NPR ($113-$189). The 2000
Child Labor Act criminalized forced child labor and prescribed penalties of up to one year’s imprisonment, a fine of 50,000 NPR ($378), or both. None of these
laws prescribed sufficiently stringent penalties. The 2007 Foreign Employment Act (FEA) criminalized fraudulent and deceptive labor recruitment of Nepali
workers for employment abroad and was often utilized in labor trafficking cases in lieu of the HTTCA. For the eighth consecutive year, the government
continued to work on revisions to the HTTCA. In August 2022, a federal parliamentary committee directed the government to amend 12 existing laws to
harmonize statutes with the Palermo Protocol, and the National Human Rights Commission continued advocacy efforts to align the country’s laws with the UN
TIP Protocol.
The Nepal police and Office of the Attorney General continued to lead anti-trafficking law enforcement efforts. During the Nepali fiscal year from July 16,
2021, to July 15, 2022, the police conducted 145 investigations involving 291 suspects, compared to 134 investigations involving 162 suspects in the previous
reporting period. The government initiated prosecution against 682 suspects in 386 cases, compared with 300 suspects in 146 cases in the previous reporting
period. District courts convicted 162 traffickers in 82 cases and acquitted 189 individuals in 85 cases under the HTTCA, compared to conviction of 164
traffickers in 72 cases and 189 acquitted suspects in 87 cases during the previous reporting period. Nepal’s high courts and Supreme Court also heard
trafficking in persons appeals involving cases originating in district courts; high courts upheld the convictions of traffickers in 49 cases and acquitted individuals
in 82 cases while the Nepali Supreme Court upheld the convictions of traffickers in 26 cases and acquitted individuals in 16 cases. The government did not
report the sentences prescribed to convicted traffickers or provide disaggregated data on sex and labor trafficking. The government did not provide any data
on bonded labor cases and efforts to investigate or prosecute bonded labor crimes were unknown.
The Nepal police and its AHTB, a specialized police unit dedicated to anti-trafficking, investigated trafficking crimes. The Nepal Police Women’s Cells (NPWC)
had female officers in all 77 districts to investigate crimes against women and girls, including trafficking, but not all district offices had fully operational units.
While investigative capacity was improving, Nepali law enforcement did not proactively identify trafficking cases and often relied on referrals from civil society,
thereby undermining evidence collection and prosecution efforts. Some police and prosecutors previously investigated and prosecuted suspected traffickers
for non-trafficking offenses such as rape, fraud, or labor exploitation. Law enforcement continued to rely on victim testimony and regularly dropped cases or
acquitted defendants due to a lack of evidence, as victims often chose not to participate in court proceedings due reluctance to assist in cases against
perpetrators who were friends or relatives, social stigma, threats or bribes from traffickers to drop cases, and a lack of available victim-witness assistance.
Additionally, traffickers often operated in other countries beyond the reach of law enforcement. The government continued to misidentify the majority of
transnational labor trafficking cases as labor violations and resolved most cases administratively through the Ministry of Labor, Employment, and Social
Security (MoLESS) in lieu of criminal investigation, with inadequate sentences for perpetrators. The Foreign Employment Board (FEB) had responsibility for
monitoring and reporting labor violations, but the agency could not conduct enforcement operations and referred cases to DoFE and the Foreign Employment
Tribunal, often resulting in adjudication of migrant labor complaints. Prosecutors could pursue a case under both the HTTCA and the 2007 FEA for
transnational labor trafficking and foreign employment fraud, respectively; however, prosecutors typically declined to do so. Many district courts did not
comply with the 2013 Supreme Court directive to adopt a “fast-track” system to complete trafficking cases within 90 days; accordingly, the government
reported that most trafficking cases heard at district courts took one year.
The government did not report any prosecutions or convictions of government employees complicit in human trafficking crimes; however, corruption and
official complicity in trafficking crimes remained a concern, inhibiting law enforcement action. The MoHA suspended the head of the Kathmandu international
airport immigration office on allegations of complicity in the transportation of potential trafficking victims using tourist visas; however, no further action was
taken following an initial investigation. The former director general of DoFE and two DoFE officials filed an appeal following their conviction in 2022 for
attempting to collect a bribe from a foreign employment agency; the cases remained pending in the Supreme Court. Traffickers reportedly bribed government
officials to include false information in Nepali passports and provide fraudulent documents to prospective labor migrants or foreign employment agents; in
addition, some government officials, including parliamentarians, maintained close ties to foreign employment agencies, resulting in potential conflicts of
interest. Operators of unregistered children’s homes – which sometimes exploit children in forced begging – were often politically connected and viewed
favorably within their community; observers stated that even when arrested, they were almost never prosecuted. Some police and political leaders were
allegedly complicit in sex trafficking through financial involvement in the AES.
The government had standard training for labor, immigration, judicial, law enforcement, and foreign employment officials that included general definitions of
human trafficking. Most police lacked specialized training and resources to interact with trafficking survivors using a victim-centered approach. The AHTB, in
coordination with civil society, developed a training manual on investigating trafficking crimes, and AHTB officials trained police personnel. The Office of the
Attorney General also conducted specialized training for prosecutors. The National Judiciary Academy had SOPs on investigation and prosecution of trafficking
cases; however, implementation of the SOPs varied. Nepal police informally coordinated on international investigations of trafficking-related crimes with
other foreign governments, particularly India, and INTERPOL.
Protection
The government decreased efforts to identify and protect trafficking victims. The government identified 207 victims, including 129 sex trafficking survivors
and 78 labor trafficking survivors, compared with 187 victims in the previous reporting period. Nearly 70 percent of identified victims were exploited in Nepal
while 30 percent were exploited in India, Cambodia, Laos, Russia, and the Gulf countries. The government continued to allocate 10 million NPR ($75,610) for
victim services, including repatriation assistance for victims abroad, during fiscal year 2021 to 2022.
The government did not have formal SOPs for victim identification and referral to services, impeding proactive identification efforts; the Ministry of Women,
Children, and Senior Citizens (MoWCSC) previously drafted SOPs that remained pending final approval by the end of the reporting period. NPWC had internal
guidelines on victim identification, including treatment of victims. The government had national standards for care of trafficking victims, which included
procedures to refer victims to care; however, referral efforts remained ad hoc and inconsistent. Observers reported the government lacked formal SOPs to
refer victims to shelter services. FEB and MoLESS continued to finalize an SOP to expand and improve procedures to guide referrals to shelter services for
both male and female trafficking survivors and returning migrant workers; the current SOP and government practices focus on GBV and trafficking of women
and girls. The government continued to lack data on the number of victims it referred for care or how many survivors used these services. NPWC typically
referred trafficking victims to government-established, one-stop emergency centers or civil society organizations, both of which could provide shelter,
medical, and legal services. Although public hospitals provided some victim services, hospitals often charged civil society organizations for medical assistance
to trafficking victims. The pandemic continued to impact anti-trafficking efforts, including reducing resources and capacity to provide services to survivors.
The MoWCSC, in partnership with civil society organizations, operated 10 shelter homes for victims of GBV and human trafficking, although civil society
organizations led operations of most shelters. These shelters provided services to 2,260 individuals, which may have included trafficking victims, compared to
2,628 during the previous period. The government also operated two long-term shelters that could assist trafficking victims, offering counselling, health
services, legal support, and employment programs. In addition, MoWCSC supported 22 short-term service centers, a long-term shelter for women, and the
first of several planned provincial shelters for GBV survivors, including trafficking victims. MoWCSC paid for basic needs, including lodging, food, health
services, and psychosocial counseling of victims receiving services, while civil society organizations covered other administrative and staff costs and provided
most victim-care facilities. Although most shelters served women and children, the government reported male trafficking victims were eligible for placement
in government-funded shelters, and the National Committee for Controlling Human Trafficking (NCCHT) could reallocate funds if male victims sought services.
Shelters for individuals with disabilities remained inadequate. The NCCHT monitored the 10 shelters and required its partner civil society organizations to
periodically submit details of their operations; similarly, district anti-trafficking committees were required to conduct at least one monitoring visit to
government-funded shelters every six months, and the NCCHT could conduct additional inspections as needed. The National Child Rights Council, which
monitored childcare homes remotely and with the assistance of civil society organizations, removed 72 children from exploitation in abusive and unregistered
children’s homes and reunified 1,211 children with their families, compared with 84 children removed during the previous year. MoWCSC provided anti-
trafficking training for staff at victim shelters, and officials trained local government representatives and orphanage staff on minimum standards for operating
care homes. In December 2022, the government finalized a SOP for operating childcare homes and began efforts to reduce the overall number of children’s
institutions; however, many positions to monitor children’s homes remained unfilled, hindering overall efforts.
The government had some victim-witness assistance available to support victims participating in investigations and prosecutions, but lacked a formal victim-
witness assistance program. The government could provide psychosocial counseling, transportation, up to three months of shelter, and police security;
however, the government did not report how many victims received assistance. However, in civil suits, most victims remained unaware of the HTTCA
provision granting the right to private representation; even in cases where victims had private representation, the attorneys often struggled to build strong
cases due to obstacles in obtaining critical information from law enforcement. The DoFE and police utilized a 2020 MOU which allowed labor trafficking
victims to file complaints at local police stations, rather than traveling to Kathmandu, to increase victim participation in cases. Victims could provide testimony
via video or written statement; however, most courts did not have facilities for video conferences, and officials often did not make victims aware of the option.
Victims continued to report challenges in providing testimony, including threats from perpetrators. Notably, resource limitations impeded authorities’
provision of a victim’s right to police protection, and observers stated victims were reluctant to file criminal complaints under HTTCA. In addition, the HTTCA
authorized the judiciary to fine victims who failed to appear in court and hold victims criminally liable for providing testimony contradicting their previous
statements. Due to a lack of formal identification procedures, authorities may have arrested, detained, and fined some unidentified trafficking victims,
including some adult and child sex trafficking victims. Police did not always recognize child sex trafficking victims as such and sometimes removed girls from
trafficking situations, sent them home, and did not refer them to services or file criminal charges against the buyer or trafficker. While a committee directed
the MHA to provide shelter to foreign victims of trafficking, the government did not have legal alternatives to the deportation of foreign victims. The
government did not report whether officials screened for trafficking among foreign nationals prior to deportation.
Victims could obtain restitution from traffickers through criminal proceedings. The government could also provide back wages from an HTTCA rehabilitation
fund if the government was unable to collect fines imposed on traffickers. The government seldom initiated victim compensation and few victims knew about
the HTTCA fund’s existence. As in prior reporting periods, the government did not report if any courts ordered restitution or if any victims received
compensation from the HTTCA fund. DoFE settled most labor complaints of migrant workers administratively and did not refer violators to the FET for civil
penalties nor to police for criminal investigation. Many labor trafficking victims preferred to submit claims for compensation through the 2007 FEA in lieu of
lengthy criminal prosecutions under the HTTCA to avoid the stigma associated with trafficking, the significantly higher potential for compensation through the
2007 FEA than HTTCA, and the lack of time and funding to access the centralized institutions charged with providing redress.
The 2007 FEA required the government to appoint labor attachés in countries with more than 5,000 registered Nepali migrant workers to address claims of
abuse or exploitation, and facilitate worker repatriation. The government continued to have seven labor attachés and five labor counselors deployed in eight
countries. Although MoLESS assigned labor attachés and counselors to diplomatic missions with a high volume of migrant workers, limited resources
prevented assigning attachés to all required countries. While some embassies could provide temporary shelter and repatriate trafficking victims, officials
acknowledged inadequate staffing, coordination, and resources to meet the high demand for services created delays in assistance, most shelters provided
space only for women, and the quality of the government-run shelters abroad was inadequate. Nepali embassies in most Gulf countries, Malaysia, and South
Korea could each provide emergency shelter for approximately 25 female migrant workers, including trafficking victims, although host country policies often
restricted missions from independently managing shelters and most embassies lacked shelters for migrant workers. Embassies did not report the number of
migrant workers assisted.
The FEB, which is responsible for protecting migrant workers and maintains a welfare fund to support labor migrants registered with the DoFE, collected fees
from registered migrant workers prior to departure for a welfare fund to provide repatriation and one year of financial support to families of injured or
deceased workers, which could include trafficking victims. During the fiscal year, the fund repatriated 215 migrant workers compared with 551 in the previous
year. The government did not report identifying any trafficking victims among those repatriated or initiating any criminal investigations. Additionally, the
government repatriated 213 bodies of Nepalis who had died while employed abroad, compared with repatriation of 892 bodies the previous year. Although
the government medically certified migrants prior to departure, many overseas deaths likely resulted from extreme working conditions such as severe
weather exposure leading to organ failure. MoWCSC funded some Nepali embassies, including the embassy in Oman, to repatriate Nepali trafficking victims.
Although there is no welfare fund to repatriate unregistered workers, FEB could repatriate undocumented migrants, including trafficking victims, by
requesting funds through the finance ministry on an ad hoc basis, or referring victims to the non-resident Nepali association, but it could not provide any other
financial support or services. Civil society organizations bore the primary cost of repatriating Nepali trafficking victims from India where repatriation could
take up to two years due to the lack of formal repatriation procedures between countries. Nepal lacked formal agreements with neighboring countries to
repatriate trafficking victims, often resulting in excessively long repatriation processes. DoFE maintained an online portal that allowed migrant workers, or
someone on the worker’s behalf, to file a request for repatriation assistance. Since the site’s introduction, DoFE has received increasing requests for
repatriation assistance, but the government did not report the percentage of successful repatriations.
Prevention
The government slightly increased efforts to prevent human trafficking. The NCCHT, headed by the MoWCSC, continued to lead interagency efforts on human
trafficking. Some municipalities formed LCCHTs following Nepal’s transition to federalism; however, the LCCHTs were not mandated by law and did not
receive national-level funding, thereby limiting sub-national anti-trafficking efforts. While the NCCHT continued to meet with and train officials from the
District Anti-Trafficking Committees (DCCHTs), observers noted the need for improved coordination between the NCCHT, DCCHTs, and LCCHTs as anti-
trafficking efforts faltered due to uncertainty over responsibilities across all levels of the government. Additionally, an office within the National Human Rights
Commission focused on trafficking of women and children; however, the office remained understaffed and less active than the NCCHT. The NHRC and
MoWCSC published trafficking in persons reports providing policy analysis and recommendations to the government. The government, in collaboration with
an international organization, continued to develop a central trafficking database to address information gaps. The MoWCSC previously formed a task force to
revise the National Action Plan (NAP); the NAP was pending formal approval by the end of the reporting period. The government continued to conduct public
awareness campaigns throughout the country, sometimes in partnership with civil society or international organizations, and operated digital displays
featuring trafficking awareness messages in key locations. The government also produced radio and television programs to raise awareness and disseminated
information about trafficking through various media sources. The government operated hotlines for victims of crime, including human trafficking, and the
Metropolitan Police Crime Division in Kathmandu continued to operate an anti-trafficking hotline. The Department of Labor (DOL), in partnership with civil
society, operated a hotline to report allegations of child labor. The FEB also operated a hotline to receive complaints concerning migrant workers, including
human trafficking incidents.
The Department of Immigration lacked effective processes for detecting potential victims of trafficking as well as a mechanism for coordinating victim
identification among intergovernmental agencies and civil society organizations. Police lacked the staff, resources, and training required to patrol Nepal’s
nearly 1,100-mile border with India, which Nepalis and Indians could cross without visas or passports. Significant transnational trafficking reportedly occurred
along the border; however, border officials did not conduct screenings and most cases were not proactively identified. Police relied on civil society
organizations to conduct screenings along the border, but these efforts focused almost entirely on intercepting female travelers.
The DoFE, which regulates and monitors recruitment agencies and pre-departure orientation centers, maintained offices in all seven provinces to increase
prospective migrant workers’ access to foreign employment-related services. The FEB also operated approximately 41 migrant resource and information
centers at the district level, which provided information on authorized recruitment agencies, maximum fees the agencies could charge workers, and
information on the risks and challenges of working abroad. The FEB continued to provide a two-day, pre-departure orientation for migrant workers; however,
the course was not mandatory and the quality varied. The government offered free certifications for skills obtained abroad for migrant workers; it did not
report how many workers utilized these services. The government’s labor migration policies remained lengthy, costly, and sometimes discriminatory against
women and the government struggled to implement and monitor regulations for foreign employment. Although the Parliamentary Committee for Industry,
Commerce, Labor and Consumer Welfare previously revoked its recommendation to ban the migration of female domestic workers younger than 24 years to
Gulf states and Malaysia, the government maintained strict pre-conditions for female migrants that destination countries could often not fulfill, thereby
increasing the likelihood of migration through irregular means and trafficking risks. In July 2022, the government approved a directive encouraging returned
migrants to use their skills and experience abroad to develop businesses in Nepal; the government also expanded the domestic social security program,
including medical insurance and compensation for accidental death, to cover migrant workers. In addition, the government removed a ban and introduced a
new policy that to allow previously unregistered domestic workers who traveled abroad via irregular channels after April 2017 to begin formally registering for
legal employment abroad.
The DoFE continued regular monitoring and inspection of recruitment agencies and pre-departure orientation centers for migrant workers; however, officials
did not report if the government identified or referred any civil or criminal cases of fraudulent recruitment agents or agencies during the reporting period.
The government required employment agencies to obtain an operating license with minimum agency requirements. Among the 854 manpower agencies
currently licensed in Nepal, only 15 had authorization to recruit domestic workers, likely due to the government’s strict pre-conditions on female migrant
domestic workers. Observers reported government monitoring of employment agencies was ineffective to address non-compliance; agencies regularly
charged migrant workers fees higher than the 10,000 NPR ($76) government-set limit. The government’s 2015 labor migration guidelines included a policy
requiring foreign employers to pay visa and transportation costs for Nepali migrant workers bound for Malaysia and the Gulf and restricted agency-charged
recruitment fees to 10,000 NPR ($76). Despite the government’s 2015 low-cost recruitment policy, employment agencies continued to charge Nepali workers
for visas, airplane tickets, and service fees above the official cap. Separately, officials expressed concern about decreased demand for labor through official
channels due to COVID-19 restrictions and the low-cost recruitment policy, with destination countries drawing more workers from countries with looser
regulations. The government maintained 10 bilateral labor agreements or MOUs with destination countries in an effort to control costs for migrant workers.
In October 2022, the government reduced travel costs as part of its MOU with the Government of Israel to provide workers for the agriculture, construction,
and hospitality sectors. In August 2022, the government signed an MOU with the Government of the United Kingdom to provide Nepali healthcare
professionals with no cost to the migrant workers.
While the informal sector employed more than 70 percent of workers in the country, including nearly all child laborers, labor inspectors did not regularly
inspect the informal sector for violations, including forced labor. The government continued to fund and conduct inspections focused specifically on child
labor; however, the DOL did not report referring any employers for criminal investigation or issuing any administrative penalties. Action against child labor
continued to be primarily reactive and the DOL did not undertake many unannounced inspections. Although 37 percent of Nepali children ages 5 to 17 are
involved in child labor, DOL did not report how many child laborers it identified or removed from exploitative conditions during the reporting period, and it
typically only removed children whom employers physically or sexually abused. DOL reportedly encouraged mediation over prosecution, including in cases of
forced child labor. The government promulgated guidelines and set a target to declare at least 25 municipalities child labor-free, but implementation stalled
due to the pandemic.
The government did not make efforts to reduce the demand for commercial sex acts. The government had special committees led by chief district officers to
monitor the AES; however, committees remained highly dependent on individual officers and did not have a comprehensive regulatory framework for
monitoring such establishments. Existing laws did not permit labor inspectors to monitor AES establishments for labor violations, which allowed some
establishments to use children and adult trafficking victims with impunity. Observers estimated only half of AES establishments had valid registration. Some
municipalities, in partnership with an international organization, developed minimum standard monitoring guidelines for the AES. Despite reports of foreign
nationals involved in child sex trafficking, the government did not make efforts to prevent child sex tourism. The government provided training on labor issues
to its diplomatic personnel, and peacekeepers reportedly received anti-trafficking training prior to deployment overseas.
TRAFFICKING PROFILE:
As reported over the past five years, human traffickers exploit domestic and foreign victims in Nepal, and traffickers exploit Nepali victims abroad. Men,
women, and children are subjected to forced labor and sex trafficking. In 2019, the National Human Rights Commission estimated that 1.5 million Nepalis are
vulnerable to human trafficking. Traffickers continue to target young, uneducated individuals from traditionally marginalized castes and ethnic minority
communities with limited economic opportunities, and then lure victims with promises of work or education. Observers report GBV, caste-based
discrimination, child sexual abuse, and the absence of economic opportunities increase the vulnerability of many Nepalis, particularly women and girls, to
trafficking. Law enforcement data indicates Nepali women and girls from 11 to 25 years old are at high risk of trafficking. Unregistered migrant workers –
including Nepalis who travel via the open border with India to third country destinations – are particularly vulnerable to forced labor and sex trafficking. Civil
society organizations noted the economic impact of the pandemic increased vulnerability among at-risk groups such as day laborers, AES employees, women,
and children. Traffickers increasingly used social media and mobile technologies to lure and deceive victims. The impact of climate change, particularly in the
Himalayan region, increases vulnerability to trafficking following disasters and population displacement.
Labor traffickers exploit Nepali men, women, and children in Nepal, India, the Middle East, and Southeast and East Asia in construction, factories, mines,
domestic work, begging, and the adult entertainment industry. The government estimates approximately 1.5 million Nepalis work in the Middle East, with
most men in construction in Saudi Arabia, Qatar, and the UAE. Foreign employment is often regarded as a respectable way to earn money to support families,
but many migrant workers are not well-informed about their rights or applicable laws. Nepalis work under oppressive conditions, which include forced labor,
and ongoing reports indicate employers retain worker passports and sometimes withhold pay for months at a time. Many Nepalis migrate through irregular
channels and work without valid permits, increasing their vulnerability to trafficking. Traffickers target unregistered migrant workers, including the large
number of young Nepali women who transit India, or men and women who rely on unregistered recruitment agents. Traffickers lure women with the promise
of domestic work or the entertainment sector in the Middle East, Sub-Saharan Africa, and Malaysia. Traffickers also bring Nepali victims to European countries
and Australia on tourist, student, marriage, and work visas. Some recruitment agencies and agents engage in fraudulent recruitment practices and impose
high fees to facilitate forced labor. Recruitment agencies sometimes provide inaccurate information about foreign employment, and migrants discover they
will be required to work in jobs that differ from what they had been promised. Some Nepali women who agree to arranged marriages – through Nepali
companies – to men in the People’s Republic of China (PRC) and South Korea are forced into domestic servitude. Traffickers exploit some foreign migrants
who transit Nepal en route to the Middle East, including Bangladeshis and Sri Lankans who use falsified Nepali travel documents. The lack of a birth
registration system in Nepal further contributed to the production of fraudulent identification documents. Traffickers reportedly take advantage of more
relaxed pre-departure screenings at Kolkata and Chennai airports, or bribe Indian officials in New Delhi and Mumbai, to fly Nepali migrant workers to third
countries without proper documentation, which increases the workers’ vulnerability to trafficking. Labor traffickers also transport Nepali victims through Sri
Lanka and Burma onward to destination countries. Traffickers from the PRC and possibly other countries reportedly recruit Nepali migrants with fraudulent
labor promises and then coerce victims into forced labor in cyber scam operations and illegal activities abroad.
Within Nepal, traffickers use forced labor and debt-based bondage to exploit adults and children in agriculture, brick kilns, the stone-breaking industry, and
domestic work. Agricultural bonded labor in Nepal has historically affected the Haruwa-Charuwa, the Haliya, and the Kamaiya communities disproportionally.
High-interest loans, landlessness, discrimination, limited livelihood opportunities, and inadequate government policies contribute to intergenerational bonded
labor. Households frequently take on high-interest loans for healthcare expenses, funeral costs, and other necessities while earning low wages, resulting in
debts passed from one generation to the next. Some Nepali brick kilns employ Indian migrant workers, including children, who take out large advances that
require working over subsequent seasons. Thousands of children work in brick kilns, including carrying loads, preparing bricks, and performing other tasks at
kilns for extended periods. Traffickers subject Nepali and Indian children to forced labor in agriculture, domestic work, brick kilns, the embroidered textile
(Zari) industry, as well as in carpet factories and stone quarrying. A 2021 study estimated that 1.1 million children are engaged in child labor – compared to
1.6 million children in 2008 – with 87 percent of cases occurring in the agriculture sector; approximately 74 percent of children engaged in the informal sector
work in hazardous conditions. A government study documented more than 61,000 Nepalis – including approximately 10,000 children – in forced labor over
the past five years, especially in agriculture, forestry, and construction. Traffickers also exploit debts to compel adults and children into labor in carpet
factories. Recruitment agents promise Bangladeshi workers well-paying jobs in Nepali carpet factories, but procure tourist visas instead of work visas and pay
less than the agreed wages. Traffickers use children to transport drugs across the Indian-Nepali border. PRC workers also faced risks of forced labor on
infrastructure projects contracted to PRC companies.
Sex traffickers exploit Nepali women and girls in Nepal, India, the Middle East, Malaysia, and – to a lesser extent – other Asian countries and Sub-Saharan
Africa. Traffickers exploit Nepal’s open border with India to transport Nepali women and children to India for sex trafficking. Traffickers subject Nepali girls,
boys, and transgender people to sex trafficking on the streets or the AES, including dance bars, massage parlors, and brothels. According to a study of the
Kathmandu Valley, approximately 17 percent of workers in the AES are minors and 62 percent of adult women in the AES started as minors. The study
estimated nearly 30 percent of minor workers in AES establishments are victims of forced labor, usually as restaurant staff, and employers later subject many
to sex trafficking. A study on commercial sexual exploitation of children found that children living on the street were highly vulnerable to trafficking. Girls in
early and forced marriages, especially in the Terai region among Dalit and Madhesi communities, were vulnerable to sex traffickers.
Some orphanages and children’s homes force children into manual labor or begging, force them to entertain visitors for donations, and sexually abuse them.
Under false promises of education and work opportunities, some Nepali parents give their children to brokers who take them to frequently unregistered
children’s homes and force the children to pretend to be orphans to garner donations from tourists and volunteers. Approximately one-third of registered
orphanages do not meet the government’s minimum standards, and some children’s home operators force children to beg or keep children destitute to
attract donations. Observers estimate nearly 11,000 children remain in registered children’s homes and “orphanages” despite approximately 80 percent
having at least one living parent. Seventy-five percent of registered Nepali orphanages and children’s homes are located in the country’s five main tourist
districts, and police sometimes arrest tourists or international volunteers, mostly from Western countries, for sexual abuse of Nepali children, including child
sex trafficking.
The government recognized Bhutanese and Tibetans as refugees but regarded refugees and asylum seekers of other nationalities as irregular migrants. The
government provided registered Bhutanese refugees an identification card, and provided cards to children upon reaching 16 years of age, requiring periodic
renewal. The government has not issued new refugee cards for Tibetan refugees since 1995 nor recognized any Tibetans who arrived after 1989, leaving most
of the government-estimated 12,540 Tibetan refugees in the country undocumented, which prevents them from legally working, studying, traveling, and
accessing public services. According to some estimates, approximately 6.7 million individuals – one-quarter of Nepal’s population – lack citizenship
documentation, rendering them de facto stateless. Legal requirements on transferring citizenship continue to impose hardships on children whose fathers are
deceased, unknown, or departed the country to work abroad. Some women are also unable to obtain citizenship due to policies requiring formal attestation
from a male family member. Lack of documentation precludes the participation of all these groups in the formal economy and increases their vulnerability to
traffickers.
3.2.5. Gender Violence in Nepal
In Nepal gender based violence is widespread cutting across classes, races, ages and religions. Women are facing violence at home, work place, market, road,
bus, school, campus, hotel, office, law, policy, program, health, business, court and so on. Persistent patriarchy and dominance of Hindu religion and culture
has treated women as a second class citizen from the very beginning. Furthermore, Hindu scripture also suggest that fathers, husbands and even sons should
control women.
Reports show that close to half of women (48%) reported experiencing violence in their lifetime, and over a quarter had experienced violence in the past 12
months. Emotional violence (40.4%) was most commonly reported, followed by physical violence (26.8%), sexual violence (15.3%), and economic
abuse/violence (8%). Women who had experienced violence reported that almost three-quarters of the perpetrators were intimate partners (including
husbands).The majority of women were unaware of any Nepali laws that address gender based violence. Only 9 percent of respondents were aware that rape
within marriage is illegal, and only 13 percent were aware of a specific law against domestic violence. Only about one quarter of women (24.8%) were aware
of services available to the survivors of gender based violence. In Nepal, a study of 3,960 girls and boys found that 10.5 percent of girls and nearly 8.0 percent
of boys reported contact forms of sexual abuse in 2005.
A large proportion of women (61.3%) who had experienced violence had not shared or discussed their experiences with anyone. Family and friends were the
most commonly mentioned persons from whom women sought help when they faced violence. Very few sought help from institutions such as the police, the
health system, and NGOs. Women from lower caste groups or religious minority groups, widowed, divorced, or separated women, and women living in the hill
regions, were significantly more likely to report lifetime experiences of violence. Reports of recent violence were associated with older women (above 35
years), women with lower levels of social networking, and women living in the hill districts.
The majority of male seem to be aware of the issue and prevalence of violence against women. When asked what the underlying causes of violence are, men
identified patriarchal norms, unemployment, lack of awareness of women’s rights, consumption of alcohol, and changing lifestyle or modernization as
important drivers of violence.
In Nepal, gender based violence takes many different forms that includes: domestic violence, sexual abuse and torture, rape, sexual harassment, incest,
women trafficking, dowry and bride price, preference for boys, mental torture, verbal abuse and gender discrimination, child marriage, polygamy, polyandry,
etc. Similarly, discriminatory laws, social customs, prejudices that undermine equal status and opportunities for women in public and private life are the major
contributing factors for the gender based violence as is our existing patriarchal social and cultural system, that gives lower social status to women, lack of
education and awareness, & child marriage.
The Situation Analysis of Violence against Women and Girls in Nepal, 1997, by Saathi in collaboration with The Asia Foundation, revealed that 93% of women
had exposure to mental and emotional torture, 82% were beaten, 30% raped, 28% forced into prostitution, 64% reported polygamy and 50% of women
victims did not seek medical care. The maternal mortality study conducted in 1998 by Family Health Division, revealed higher suicide rate exist among women
of reproductive age group.
Both men and women can be victims of violence, but the characteristics of violence commonly committed against women and men differ. Women are more
likely to be physically assaulted or murdered by someone they know, often a family member or intimate partner. They are also at much greater risk of being
sexually assaulted or exploited, in childhood, adolescence or as adults.
The most common form of gender based violence in Nepal is domestic violence, or gender based violence in families. Research consistently demonstrates that
a woman is more likely to be injured, raped or killed by a current or former partner than by any other person.
Strategies to Control
 Provide women with access to legal representation and opportunities to pursue justice against perpetrators of violence through the formal legal system
 Promote gender equality in schools and widen access to education for girls. It has been proven time and time again that girls enrolled in school are less likely
to be married early and become pregnant. If that weren’t reason enough, girls that obtain higher levels of education are more likely to find employment and
become empowered as a result of their financial contributions to the family and community.
 End forced early marriage and premature pregnancy, the leading cause of death of girls between 15 to 19 years of age. With more than 142 million girls
expected to marry before they turn 18 over the next decade, implementing programs which offer conditional cash transfers to incentivize families to delay
their daughter’s marriages, will likely help reduce arranged marriages and allow girls to develop both physically and mentally before marriage and child-birth.
 Create laws that states violence perpetrated by a partner or spouse is punishable by the law.
 Revise marriage laws that are institutionally biased against women, particularly those that deny women custody over their children, inheritance, and
property laws and rights in cases of death, separation or divorce.
 Creating effective and widespread awareness campaigns regarding gender based violence and promoting the participation on male on these campaigns.
Current Challenges
The problem of gender based violence persists severely in Nepalese society. Nepal has been able to decrease the number of gender based violence. However,
it has a long way to go before this problem is completely solved. Many challenges lie in the solving of gender based violence. These challenges can be listed as
follows:
 Largely unequal power relations between men and women in rural areas of Nepal
 Existence of social and cultural norms that emphasizes on male dominance over female and consider women to be inferior than men
 Existence of laws and policies that pay little attention to gender based discrimination
 Lack of reported cases on gender based violence to the police has caused this problem to be largely undermined and underestimated
 Lack of effective monitoring and evaluation system to identify the true nature and extent of the problem regarding gender based violence
 Existence of beliefs that discriminate between genders
 Lack of funds to look after women victimized by gender based violence
 Lack of awareness and consideration of gender based violence as a problem of women and not a social problem as a whole
 Poor economic status and dependence of women upon male in financial matters
 Lack of strict rules to prevent gender based violence
 Accurately monetizing financial and economic cost of domestic violence is difficult
 Weak information dissemination and poor communication and coordination among the stakeholders
 Lack of faith of victims due to uncertainty of quality of service
 Limited treatment provisions for cases with severe injuries
Existing Implementation Gaps
Mechanisms for implementation, monitoring and accountability are in adequately implemented. Implementation is a particular challenge at district level,
where there is limited awareness of laws and policies and lack of clarity about where primary responsibility resides for ensuring that action is taken. Weak
coordination is also a factor.
Further, the Domestic Violence Act does not recognize domestic violence as a crime against state. Rape cases have to be filed within 35 days; this time period
may also need to be revisited considering the reluctance of many women and girls to open up and discuss the issue publicly. Punishment for those found
guilty of some forms of violence is minimal, so the police do not consider it worthwhile to find the perpetrator.
Women lack awareness of the law, of their rights, including protection from violence and to legal redress, and of available services. Women who seek formal
support may suffer negative outcomes including discrimination, stigma and social isolation. This is particularly true in cases of sexual violence. Many also fear
that seeking help will bring shame on their family.
Women may be discouraged from reporting violence or seeking outside help. Male dominance of institutions, including the police and the judiciary, and lack
of women in positions of authority reinforce the perception that institutions are unsupportive. There is limited awareness across all sectors of institutional
responsibilities for service delivery and of policy directives and guidelines for dealing with victims of violence. Available resources are under-used.
Although specific budgets are available to institutions to address gender-based violence, some district officials have cited lack of resources as a problem. The
‘Domestic Violence Fund’, for example, which funds districts to provide support for women who have experienced violence, is not being fully utilized; this is
due to bureaucratic procedures, women’s lack of empowerment and the fact that only serious cases are reported to the Fund. Institutional accountability
mechanisms are poorly implemented. Few institutions ensure that services are delivered or monitor the quality or outcomes of services.
There are significant gaps in available information about violence against women. The lack of centralized collection of data makes it difficult to measure and
monitor the overall burden of violence against women.
There is a lack of robust systems for monitoring and data review at district level, and of clarity about how data is reported up through the system. There is
little information about the perpetrators of violence and the evidence base on effective approaches, including with men and boys, to preventing violence
against women is weak.
Way Forward
Gender based violence remains one of the most serious social, legal and health challenges for the 21st century. It is a major public health problem and has a
serious impact on women’s health and well-being. It is one of the indispensable issues of equity and social justice. It happens in all the settings like family,
community and state hence, has to be dealt with involving all the sectors. Much work remains to be done to create an environment free of gender-based
violence.
Existing social structure and the roles that society has determined to women have played important role to make women face various forms of violence.
Consideration needs to be given to change the existing patriarchal social structure and the attitude that exists among people through awareness programmes.
Though the constitution and government plans, policies, and strategies have tried to address the gender based violence, implementation aspect of those
constitutional and legal provisions is very weak. This calls for strong implementation of existing laws to curb the cases of gender based violence.
The Government should take proactive initiatives to implement the international conventions, treaties and covenants related to women. The condition of
women won't improve until and unless the participation of women within the organizational structures of political parties is increased. The cases of violence
against women during decade-long Maoist conflict need to be investigated thoroughly and the guilty behind such incidents need to be brought to justice
based on the principle of transitional justice system.
Government needs to formulate new laws such as one to deal with cyber crimes - the lack of which has made women vulnerable to face violence. The statute
of limitation for filing case in utterly evil crimes like rape needs to be increased from existing 35 days. Women's access to the judicial system and media needs
to be increased to curb violence against women. The practice of media to assassinate the character of women based on false information needs to be
discouraged. Coordination and cooperation among all sectors could help to curb the cases of gender based violence.
A curriculum on civic education that includes the issue of gender based violence needs to be incorporated in secondary level textbooks to create a society
based on gender equity. Judges and justices need to be provided with training and orientation to make them more sensitive to the issues related to violence
against women. Officials in government agencies need to change their response to cases of violence against women.
Additional efforts need to be made to create gender friendly work place for women. Meaningful participation of women in all state structures including in
political parties and their access to resources are key to end the cases of gender based violence.
3.2.6. Domestic violence in Nepal
Domestic violence encompasses behaviors used in a relationship by one party, especially to control the other. The people involved can be married or not, be
of the same sex or not, live together, separated, or dating. We can all be victims of domestic violence. Victims can be rich or poor, of any age, sex, religion,
culture, ethnic group, sexual orientation, education, or marital status. The person commits the crime of domestic violence when he inflicts physical or
psychological abuse, once or several times, on a spouse or ex-spouse. The person commits the crime of domestic violence who inflicts physical or
psychological abuse, once or several times, on a person who is particularly defenseless due to age, disability, illness, pregnancy, or economic dependence.
In Nepal, most of the cases of domestic violence are practiced against women, in the different forms that are present today. domestic violence can occur in
the family environment because of the cultural habits based on patriarchal discourses. In these contexts, of cultural practices and habits built over the
countless changes of generations, the social condition of women has always been one of submission and subjugation to men. Many forms of domestic
violence against women are a consequence of the lack of understanding of the current female condition, which bears the same rights conferred on men.
However, it doesn’t mean that husband doesn’t suffer from domestic violence. He can also suffer from domestic violence by the hands of his wife or, by the
hands of his wife brother and male relative. Section 2 Ka of domestic violence Prevention and control Act 2009 has interpreted domestic violence as physical,
psychological, sexual, or economic torture caused by one person to another person.
Who can complain against the domestic violence in Nepal?
The domestic relationship means the relationship that existed between the family members within the home. And the member of the joint family, persons
living under the same roof as a member of the family, dependant or the laborer. According to the Domestic Act of Nepal, the following members can complain
in the event of domestic violence:
 Father, mother, daughter, daughter in law, mother in law and father in law
 Adopted son and adopted daughter.
 The persons residing with the same family as a worker.
In domestic violence, there must be two people involved who have or have had an intimate relationship. domestic violence can be in any form such as
coercion, assault, punishment, intimidation, or revenge in between the intimate relationship.
Types of domestic violence in Nepal
The kinds of abuse covered under the domestic violence Prevention and Control Act 2009 of Nepal are:
 Physical abuse
Physical abuse means an act of causing bodily harm or physical injury. Such abuse can cause temporary or permanent disability to the person on which
physical abuse has been conducted. Such abuse can be in any form such as keeping the victim in captivity, causing physical pain, mutilation, or the breaking of
body parts such as hands and feet. Physical abuse can be in the form of battery and assault as well.
 Mental abuse
Mental Abuse is a hostile attack on the victim’s thinking, psyche, perception, and being. The longer you are exposed to this violence, the greater the self-doubt
arises in the mind of the victim. The person can cause mental abuse in the victim through messages ad behavior that can lead to the victim’s doubts about
their own perception and their own minds. It is part of the partner’s strategy to persuade the victim that the trouble and stress are due to him or her. the
relationship is in trouble because of the victim. Physical violence is clear, psychological, and mental violence is not, nobody sees the injuries.
Most commonly the women are the ones who suffer from mental abuse. Only a few women are insulted by their partner in public and devalued, trashed, or
bullied in front of witnesses. The partner realizes too late that she is a victim of domestic violence. It usually takes years for those affected to understand that
much of their suffering is caused by the hostile behavior of people who claim to love them.
 Sexual abuse
The term sexual abuse is used widely to categorize acts of sexual violation in which there is no consent from the other party. This type of violence includes any
practice with sexual content that is forced, such as attempted rape, unwanted caresses, and forced oral sex. Sexual abuse can be in the form of sexual
misbehavior, humiliation, or any other act that hampers safe sexual health.
Economic Abuse
Economic abuse can take various forms. Often the victim is not even aware of it and only realizes it when they are at a point where it seems impossible to end
the relationship. Economic abuse is the exploitation of income and time. Sometimes you are forced to transfer your own wages to the partner’s account, but
sometimes you are prevented from working or going to university. Financial abuse can also be seen in the fact that one is financially monitored, one is denied
access to one’s own money or the partner spends the money of the person concerned. It is the deprivation of one partner from enjoying jointly or privately
owned property or deprivation of or access to employment opportunities, economic resources, or means.
Can the husband file the case of domestic violence in Nepal?
In accordance with the domestic violence Prevention and control Act 2009, if the close relative causes physical, mental, sexual, or economic violence, then it is
called domestic violence. If the wife physically assaults the husband and evict from the home then the husband can file litigation of domestic violence against
the wife and can file for divorce.
Where should the case be filed if there has been an act of domestic violence?
If you as husband or wife is suffering from such domestic violence as mentioned above, then it is your right to complain against the person who is causing you
the domestic violence. You as the victim can complain against the domestic violence in the following orifices:
 The nearby police office
 The National Women Commission
 Municipality or ward office or the local bodies.
 District Court
What is the procedure of complaining against domestic violence?
If you want to file a complaint against the domestic violence, then you have to follow the procedures listed below:
 Filing case verbally or in writing
If you are suffering from domestic violence, then you can go to the nearest police station or municipality and can file a complaint either orally or in written
form. Once your complaint is filed, then the police will write the application and make you sign the application of complaint along with wit your thumb
impression.
In case of a severe act of domestic violence, such as an acid attack, physical assault, burning, griding, sexual assault, etc that has caused the physical and
mental injuries, and disability. Then police will file the FIR against the person who has committed domestic violence.
 Call the person who has committed domestic violence to be present
Once your complaint has been filed in the police station, then the person who has committed domestic violence is called in the police station to be present. If
the person doesn’t come to the police station, then he will be arrested.
 Treatment of victim
If the victim has been severely injured due to domestic violence, then the victim will be taken to the nearby hospital or medical center for instant treatment. If
the victim is mentally injured, then he will be consulted by the psychologist for mental and emotional healing.
 Effort for compromise
The police or the ward office will try its best for the victim and the perpetrator of the domestic violence to compromise and reconcile. Most of the domestic
violence happens between husband and wife or between the nearest relatives. Because it is the family matter, therefore police and legal authorities make an
effort for the victim and perpetrator to compromise. So that the family matter gets resolved then and there and the matter doesn’t go to the court.
 Sending to the court
If all the means of compromise and reconciliation have been exhausted, then the case will be filed in the respective district court. The police will collect all the
evidences of domestic violence and will present it in the district court.
 An interim protection order shall be issued
The court will issue the interim protection order to the victim and will provide alternative accommodation to the victim. Such an order is issued when the
victim still feels the threat of domestic violence against him or her by the perpetrator. The purpose of issuing this order is to provide protection to the victim
and prevent the perpetrator from causing more physical and mental damage to the victim.
 Provide the compensation
If the victim has suffered physically and mentally from the act of domestic violence, such that the victim is needed to be treated in the hospital. Then the
expense of the treatment is borne by the perpetrator of the domestic violence. He will not only bear the expenses of treatment but he will also have to bear
the expenses of full rehabilitation of the victim. Since that the victim can resume his or her normal life again. The court will take into consideration all the
factors such as the financial status of the victim and the perpetrator of domestic violence and then will decide the amount of compensation.
 Punishment
The offender of the domestic violence not only has to bear the medical expenses toward the victim but after sufficient evidence, if his guilt is established in the
court. Then the offender will also be punished. He will have to pay the fine ranging from 3000 to 25000rs. Or he may have to face the jail sentence of two
months. Or he may have to pay the fine as well as face the jail sentence.
Not only the offender of domestic violence, but the person or persons who have assisted him in causing the domestic violence will also be punished. It doesn’t
matter if the person has just incited for domestic violence or actively participated in the act. He will face half of the punishment that has been given to the
main or the principal offender of domestic violence.
Conclusion
Domestic violence charges are a serious offense. If you are the victim of domestic violence, then don’t hesitate to contact Divorce Nepal as we will fight for
you. So that you will get the right justice. Sometimes, it so happens that people may accuse you wrongly for the domestic violence. there are such people who
will not hesitate to misuse the legal provisions of domestic violence for their own advantage.