The recent sexual exploitation and murder of a three-year-old girl in Bara has reignited one of Nepal’s most difficult legal and public debates: should the death penalty be brought back for the most heinous crimes?
The intense public anger following the case reflects the deep concern of citizens and lawmakers, emphasising their desire for justice for victims of rape and murder, especially children.
The Government has responded by signing a three-point agreement with the victim’s family and promising legislative reform. A committee has been mandated to examine the existing law governing serious offences and penalties and recommend changes that reflect what the agreement describes as citizens’ expectations.
The government, however, has maintained that introducing the death penalty is not possible under Nepal’s existing constitutional and international legal obligations.
The debate therefore goes beyond the question of whether a particular crime deserves the harshest punishment. It raises a much broader question: could Nepal legally bring back the death penalty even if Parliament and the public supported it?
Important: The Bara case remains under investigation. Nothing in this article should be interpreted as determining the guilt of any individual involved in the case.
Nepal’s Constitution Prohibits the Death Penalty?
The starting point is Article 16 of the Constitution of Nepal 2072, which explicitly states that “No law shall be made providing for the death penalty to anyone,” underscoring the constitutional ban on reinstating capital punishment.
This creates a direct constitutional prohibition. It means that no District court, High Court or even the Supreme Court can currently sentence a person to death, regardless of how serious the offence may be. It also means Parliament cannot simply amend the National Penal Code through an ordinary Act and introduce execution as a punishment.
Article 1 of the Constitution of Nepal 2074 establishes the Constitution as Nepal’s fundamental law. Any legislation that conflicts with it can therefore be declared void to the extent of the inconsistency. This was also the position expressed by government ministers following the Bara Case: whatever the level of public anger, legislation must remain within the limits imposed by the Constitution.
What Punishment Does Rape and Murder Carry Under Current Law?
While calls for harsher penalties are common, Nepal’s current Penal Code already prescribes severe punishments for serious sexual offences, including rape and murder.
Rape of a Child
Rape is principally governed by Section 219 of the National Penal Code 2074. The punishment varies depending on factors including the age of the victim. Rape involving a very young child attracts the most severe category of punishment available for the rape offence itself.
Murder Following Rape
Where rape is followed by murder, the legal position becomes even more serious. Section 41 of the National Penal Code 2074 identifies particular offences for which life imprisonment is imposed on the offender for the offender’s entire natural life. The provision includes murder committed after rape. This is materially different from ordinary life imprisonment, which is generally treated under the Code as a defined period of imprisonment.
What Has the Government Promised After the Bara Case?
Following the Bara case, the Government reached a three-point agreement with the victim’s family, including a key commitment to establish a committee to review Nepal’s laws on serious offences and to consider potential reforms.
The committee has been tasked with reviewing laws relating to matters including:
- sexual violence,
- offences against women and children,
- punishment for serious crimes, and
- legislative reforms.
Its mandate is particularly significant because public demands have increasingly focused not only on capital punishment but also on whether Nepal’s broader criminal justice system responds adequately to sexual violence and offences against children.
The committee therefore has an opportunity to examine problems extending far beyond the maximum sentence available after conviction. These include how crimes are reported, investigated, prosecuted and ultimately decided by the court.
How Did Nepal Abolish the Death Penalty?
The death penalty has not always been prohibited in Nepal. Historically, execution was available under earlier criminal law arrangements for serious offences. The position gradually changed during the twentieth century.
The decisive shift came with the democratic transition. The Constitution of the Kingdom of Nepal 2047, promulgated on 9 November 1990, prohibited the making of any law providing for capital punishment, making Nepal one of the first countries in South Asia to place abolition in its constitution. The criminal law was brought into line by amendment in 1997, extending abolition to all offences including offences against the State. The Interim Constitution 2063 (2007) carried the prohibition forward, and the 2015 Constitution carried it forward again and elevated it, expressing abolition as an aspect of the right to live with dignity.
Three successive constitutions, drafted under a constitutional monarchy, a post-conflict interim settlement, and a federal republic, each independently reached the same conclusion. That is worth remembering when reintroduction is described as a small correction.
What is the Treaty Position in Nepal?
The Constitution is not the only problem in restoring the death penalty. Nepal is a member party of different international Treaties and conventions. Nepal has also accepted significant international obligations relating to the death penalty.
International Covenant on Civil and Political Rights (ICCPR)
Nepal accepted the International Covenant on Civil and Political Rights (ICCPR) on 14 May 1991. Article 6 of the ICCPR protects the right to life and establishes important restrictions concerning capital punishment. It is non-derogable, meaning it continues to apply even during a declared emergency.
Second Optional Protocol to the ICCPR
More significantly, Nepal subsequently acceded to the Second Optional Protocol to the ICCPR, which is specifically aimed at the abolition of the death penalty. Under the protocol, participating states undertake not to execute individuals within their jurisdiction and to take measures necessary to abolish capital punishment.
Nepal also acceded to the First Optional Protocol, which allows individuals to complain to the UN Human Rights Committee, and under the Second Optional Protocol that complaint route extends to the abolition obligation. The Convention on the Rights of the Child, ratified in 1990, separately prohibits capital punishment for offences committed by persons under eighteen, which is directly relevant where a suspect is himself a minor.
Section 9 of the Nepal Treaty Act 2047 provides that where a ratified treaty is inconsistent with domestic law, the treaty prevails. That is the mechanism by which these instruments operate inside the Nepali legal system rather than merely alongside it.
What Reintroduction Would Require for the Death Penalty?
Step 1: Amend the Constitution
Article 16(2) would have to be removed or qualified. Amendment is governed by Article 274 and requires a two-thirds majority of the total membership of each House of the Federal Parliament, with provincial assemblies allowed to comment where provincial competence is engaged. There is no route by ordinance or by simple majority. A threshold question would also arise, namely whether a fundamental right expressed in terms of human dignity can be amended away at all, and it would be litigated before any amendment took effect.
Step 2: Deal with the Treaty
The Second Optional Protocol contains no denunciation or withdrawal clause. The UN Human Rights Committee treats abolition under it as legally irrevocable. It takes the view that an offence which did not carry the death penalty at accession cannot later be made capital. Even a successful constitutional amendment would leave Nepal bound in international law not to execute anyone. Carrying out an execution would put Nepal in open breach of a treaty it joined voluntarily and without reservation.
Step 3: Rewrite the Statutes
Section 40 of the Penal Code sets out an exhaustive list of permissible punishments. Death is not on it, and the list is closed. It would have to be reopened, and Sections 41 and 219 amended to attach the sentence. The Criminal Offences (Sentencing and Execution) Act 2074 would need parallel amendment.
Step 4: Absorb the Consequences
Reintroduction would attract adverse findings at Nepal’s Universal Periodic Review and from the Human Rights Committee. It would create obstacles to extradition and mutual legal assistance, since many States refuse both when execution may follow. That would make it harder, not easier, to bring back offenders who flee abroad.
What Nepal Can Reform Without Introducing the Death Penalty?
This may ultimately be the most important part of the debate. Many of the problems highlighted following serious sexual offences can be addressed without changing Article 16.
- The limitation period – Sexual violence is often reported late due to trauma, stigma, pressure or threats, so the Government can extend or reform limitation periods through ordinary legislation without introducing capital punishment.
- Modernising sexual violence laws - Lawmakers can review whether Nepal’s laws adequately address consent and protect all survivors, including through gender-neutral provisions, marital rape rules, age protections and safeguards for vulnerable victims.
- Immediate police response – Missing-child cases should trigger immediate search and investigation protocols, with clear accountability where police fail to act promptly.
- Forensic capacity – Invest in DNA testing, evidence collection and preservation, forensic labs, chain-of-custody systems, and specialist investigators to improve prosecutions and reduce reliance on confessions.
- Speedier trials - Nepal can prioritise grave sexual offence cases through continuous hearings, specialist benches, trained legal professionals and strict timelines while safeguarding fair-trial rights and reliable evidence.
- Victim-sensitive procedures - Limit irrelevant questioning about survivors’ sexual history and strengthen clinical and forensic examinations through clear, binding medical protocols.
Conclusion
The demand for the death penalty is a demand that the State take these crimes seriously, and that demand is legitimate. The law says it cannot be met in the form in which it is being made. Reintroduction would require a two-thirds constitutional amendment, an unresolved debate over whether that amendment is even permissible, the reopening of the Penal Code’s closed list of punishments, the construction from scratch of a capital-procedure apparatus, and an open breach of a treaty from which there is no exit.
Meanwhile, the sentence for what happened in Bara is already imprisonment for the remainder of the offender’s natural life. The seven-member committee now has days, not months, to decide whether its recommendations go beyond stronger language on punishment. On the record, the committee that reported in May and produced no bill is the one worth watching.
The uncomfortable point is that the maximum sentence is not where Nepal’s problem lives. It lives in the missing-person report that was not treated as an emergency, in the forensic sample that was never properly taken, in the limitation period that closes the courtroom door, and in the survivor who stopped coming to court. Those are all things an ordinary bill and an ordinary budget can fix. None of them requires the Constitution to be reopened, and none of them will generate the applause that a death penalty bill would. That is precisely why they are the test of whether this reform process is serious.
Frequently Asked Questions
Is the death penalty legal in Nepal?
No. Article 16(2) of the Constitution of Nepal prohibits the enactment of any law that provides for capital punishment.
What is the maximum punishment for rape followed by murder in Nepal?
Imprisonment for life. For the offences listed in Section 41 of the National Penal (Code) Act 2074, including murder committed after rape, that means the whole of the offender's natural life. Otherwise, life imprisonment is defined generally as twenty-five years.
Can Parliament introduce the death penalty through an ordinary law?
No. An ordinary Act providing for capital punishment would conflict with Article 16(2) of the Constitution and could therefore be declared unconstitutional.
Can Nepal simply leave the treaty?
The Second Optional Protocol to the ICCPR contains no withdrawal clause, and the UN Human Rights Committee treats abolition under it as legally irrevocable. There is no clean exit.
