Off the Record 072: How free is speech?
Issue 072 • 21 October 2022
It’s October 21, 2022, and you’re reading Off the Record, the weekly newsletter from The Record. We are an independent, ad-free, digital news publication out of Kathmandu, Nepal that is currently on a publishing hiatus.
I’m Pranaya Rana and in this newsletter, we’ll stop, take a deep breath, and dive into one singular issue that defined the past week.
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Good morning, good afternoon, and good evening from a Kathmandu in a post-Dashain, pre-Tihar lull. I am back after nearly a month of a well-deserved break. In my absence, much has happened in Nepal’s political sphere, as the parties ready themselves for the upcoming November elections. Lots of highs and lows and much drama have unfolded in the days since the Dashain holidays ended. As usual, we’ll take a quick look at developments before moving on to our deep dive.
Elections and candidates
As the November 20 date for elections nears, I’ll dedicate a deep dive to the farce that elections have become in this country. In previous elections, the major parties, despite a few electoral alliances, generally duked it out, going head-to-head in order to gain a majority. In this federal and provincial election, as with the local elections earlier this year, the parties have arrayed themselves into two blocks, one consisting of the Nepali Congress, Maoists, Unified Socialists and others, and the other consisting of the UML, Rastriya Prajatantra Party and others.
Now that all the candidates have filed their candidacies and election fever is taking hold, here’s the farce. The Congress and Maoist-led alliance has decided to field ‘common’ candidates across the country, meaning that one candidate from the alliance will contest one constituency with all the other partners supporting that one candidate. The top leaderships of the parties have divided up constituencies among themselves, much to the chagrin of their own local-level party members, many of whom were denied tickets in favor of another alliance party candidate. So Pushpa Kamal Dahal is contesting Gorkha-2, the home constituency of Baburam Bhattarai, erstwhile second to Dahal and current chief of the Nepal Samajbadi Party, and an area that he’d traditionally won. This time, Bhattarai is not contesting the elections, preferring instead of hand over his constituency to Dahal, allegedly in exchange for the coalition’s support for his daughter, Manushi Yami Bhattarai, who is contesting Kathmandu-3. Dahal, the alliance candidate, is being challenged by Abdus Miya, a young candidate from the UML who was previously with the Bibeksheel Sajha party, and also Madhavi Bhatta, a former Nepali Congress member who quit the party to contest as an independent.
The same story has repeated across the country, especially with young candidates challenging powerful party chiefs and former prime ministers. Sher Bahadur Deuba, who is once again contesting his home Dadeldhura-1, is being challenged by Karna Malla, another Nepali Congress member who split from the party, and also by Sagar Dhakal, another young independent. Similarly, in Jhapa-5, his home district, UML chief KP Sharma Oli is being challenged by the Nepali Congress’ Khagendra Adhikari and by independent Yug Pathak, a political commentator and the author of Urgen ko Ghoda. In Kathmandu-5, my home constituency, the UML’s Ishwar Pokhrel is going up against the Congress alliance’s Pradip Poudel and independent stalwart Ranju Darshana, previously with Bibeksheel Sajha.
There’s a lot of animosity with the parties but I don’t know if that dissatisfaction is going to translate into votes for independents in the election. The sheer number of party cadres, organizational strength, deep-pocketed financiers, and a history of Nepalis voting along party lines will certainly benefit them. Still, there is hope that some young independent upstart will win in stellar fashion as Balen Shah did in the Kathmandu mayoral race. That win might not change much but it will be some level of satisfaction to see an old, established, complacent party leader lose.
And speaking of deep-pocketed financiers and people I’d like to see lose the election, resident billionaire Binod Chaudhary is contesting Nawalparasi-1 as the coalition’s candidate. Chaudhary has been a member of parliament through the proportional representation list — let the irony of that sink in — but will now be directly contesting the election in what seems to be yet another exercise to massage his ego. There is absolutely no reason for him to run in the election and yet, he appears to want to prove that he is beloved by the people. Given his wealth and all the power that comes with being the country’s only billionaire, he will probably win but that will not be a show of popularity as much as evidence of just how many votes money can buy in this country.
There’s a lot more to be said about the election and candidates but I’m going to save that for a later date.
The folly of Balen Shah
The tide seems to be turning slowly against Kathmandu Mayor Balen Shah as last week, a video of a street cart vendor, one Sharmila Tamang, went viral on social media. The video depicts Tamang holding on to her pushcart and crying as she wonders how she is going to feed her children now. Tamang, a 34-year-old mother of two, once sold tea, chatpate, and other snacks from her pushcart. Upon Mayor Shah’s orders, Kathmandu Metropolitan City has been seizing the carts and goods of street vendors like Tamang and destroying them. Tamang, whose earnings are meager, appears at a loss on how to replace the goods that were destroyed by the city authorities and how she will now make ends meet.
Shah’s campaign against street vendors was once widely lauded, especially by the well-to-do sukila-mukila of Kathmandu. Vendors sell clothes, vegetables, food stuff, and all kinds of other goods on the sidewalks and via pushcarts. They occupy space on the roads and on sidewalks and for those who shop exclusively at Bhat-Bhateni and other malls, they’re nuisances. For others — the economically disadvantaged, school children, and recent migrants — these vendors offer cheap goods and services. Panipuri and chatpate sells are often thronged by young kids looking for a quick snack before heading home from school. Fruit vendors bring fresh produce to doorsteps on their bicycles. And by the roadside, you’ll find cobblers, umbrella repairmen, watchmakers, and fortune tellers.
According to Shah, these businesses are illegal and hence, must be stopped. That might be technically true but these people also constitute the life-blood of a teeming metropolis. They don’t just provide goods and services but also act as “eyes on the street” to borrow from Jane Jacobs. These ‘eyes’ observe and provide a sense of urban safety to residents and commuters. So it is not just a matter of what they get out of selling on the streets but what the city and its residents get out of their presence. Rather than focusing on the vendors’ identities as poor and marginalized, it would also be useful to speak of their value when it comes to urban life and culture.
This is of course not what social media was considering. They were more taken by Sharmila Tamang’s emotions. I don’t fault them for that. It is human to be moved by another’s despair. And perhaps now they will be less likely to uncritically support whatever Balen Shah does. There were better ways he could’ve gone about addressing street vendors, like introducing rules and regulations on when and where they can ply their trade, a registration or permit system, and designated spaces on public land for street vendors. There was also no need for Shah’s goons, the metropolitan police, to be so heavy-handed. There was no need to seize a carton of bottles from an elderly man selling mineral water on the street or trample fresh produce from a vegetable vendor or destroy all of Sharmila Tamang’s goods.
Man of the century
Satya Mohan Joshi, the doyen of Nepali culture and history, died on Sunday, October 16 from old-age-related complications. Joshi was 103. In his long and storied career, Joshi traveled extensively across the country and wrote over a dozen books on Nepali culture and history. He was a fixture in Nepal’s cultural scene with an encyclopedic knowledge of all things Nepali. Among his accomplishments are the founding of the Rastriya Nachghar and thrice winning the Madan Puraskar, Nepal’s most prestigious literary honor.
Even among those who’ve never read any of his books, Joshi was a well-known figure. That was partly due to his unflagging energy, even well into his 90s. He was always ready for an interview, always willing to go out and attend yet another cultural event. He was ever-present on the literary and cultural stage and that is how a new generation of Nepalis learned about him and his life’s work. In Joshi, young Nepalis found a rare character — a man from an older generation who did not owe his fame and national standing to politics.
Much has already been written about Joshi by people far more in the know than me. Journalist Girish Giri has written numerous pieces in Nepali on Joshi, including Joshi’s biography. The Kathmandu Post’s Dinesh Kafle also offered tribute to Joshi via a literary eulogy. Read those to know more about the man they called shatabdi purush (man of the century.)
And now on to our deep dive.
The deep dive: How free is speech?
This is stand-up comedian Apoorva Singh Kshitiz. And as of Thursday evening, he was in jail for allegedly insulting the sentiments of the Newa community through his comedy. He was released on Thursday on Rs 250,000 bail and has been charged with disrupting communal harmony, undermining social rites and rituals, discrimination on the basis of caste, and degrading treatment of an entire community. The Kathmandu District Attorney is seeking a five-year jail term.
All of this for a stand-up comedy set.
Sometimes, I take solace in the fact that Nepal is a relatively free and open society, at least when compared to the rest of South Asia. Despite the state of our politics and the rampant rapacious corruption, we are a largely pluralistic and tolerant society with a vibrant media. This is what I tell myself whenever I feel a little too depressed about moving back to Nepal.
But as the years go on, and as more and more artists, critics, and comedians begin to get arrested, it has become clear that the space for speech and expression is shrinking. Apoorva Kshitiz is only the most recent casualty of this crackdown on free speech and free expression, but it is not always the government that is doing the policing. Rather, it is citizens who are making use of unclear laws to suppress any kind of speech that they do not like.
In Kshitiz’s case, the Newa community took offense at a few jokes that he had made regarding Newa women and Nepal Bhasa. The jokes weren’t exactly hilarious but they weren’t demeaning either. The most you could say about the jokes is that they were in poor taste. Once the Newas were offended, Kshitiz issued a public apology and took down the video of his stand-up set. But that wasn’t enough for the ‘activists’. Over a hundred such Newa activists signed a complaint against Kshitiz, alleging that he had knowingly harmed and demeaned their culture and traditions, and by extension, their entire community and caste. Kshitiz was duly taken into custody on August 28 but was released on September 8 without bail after having caught Covid.
I, like many others, had believed that that was the end of the story. The Newa community had exacted some form of punishment on Kshitiz by placing him in police custody for over a week. Kshitiz had been publicly shamed and he had apologized. That would’ve been enough for any individual who is not overtly cruel. After all, Kshitiz is a young man who made a few tasteless jokes. His jokes were not malicious and they did not seek to harm anyone. That much is evident from the set itself. But no, those activists and their lawyers have refused to let the case go. Instead, with elections around the corner, they seem to have seized upon Kshitiz to make an example out of him, possibly to gain votes for certain parties from ethnic Newa enclaves in the Kathmandu Valley.
Kshitiz is now being charged with Sections 65 (prohibition of acts prejudicial to public harmony), 165 (prohibition of undermining social rites and rituals), 166 (prohibition of untouchability or discriminatory treatment on ground of caste), and 168 (prohibition of degrading or inhuman treatment) of the Penal Code. If found guilty on all four counts, Kshitiz could face a maximum of five years and up to Rs 100,000 in fines. Yet, the bail amount that the Kathmandu District Court set for Kshitiz was Rs 250,000 more than double his potential fines.
It is clear that Kshitiz is being made an example of. No one has ever been prosecuted under the above sections of the Penal Code since the code was promulgated in 2017. The decision on his case will set a precedent and if that precedent is guilt then may Pashupatinath help all of us who have made careers out of critical commentary, humor, and satire. These are signs of a slow creeping intolerance, especially among certain communities that have long been close to power. The Newa community might have an indigenenous tag but it is by no means marginalized when it comes to access to power. As I have mentioned before, CK Lal, the political commentator, has often fingered the Newas alongside the Bahuns and Chhetris in their stranglehold over the socio-political sphere. The Newa community has certainly been exploited, Nepal Bhasa marginalized, and their culture tokenized but at the same time, their proximity to power has afforded them many opportunities denied to other indigenous, janajati, and Madhesi communities.
It is important to acknowledge the ethnic color of this issue because Kshitiz himself is a Madhesi. When he was arrested, a horde of Newas could be heard hurling all kinds of slurs at him, as if it was justified since he had ‘insulted’ them. That aside, Bahun, Chettri, Newa comedians routinely make fun of Madhesis. And not in the relatively harmless way that Kshitiz did. Sandip Chettri quite literally put on blackface and did an extremely insulting caricature of a Madhesi, disgustingly named Mithailal Jyadav for years and that too on Kantipur TV, the country’s largest television network. Deepak Raj Giri and Deepa Shree Niroula, two of Nepal’s most popular comedians and filmmakers, built their fame on caricaturing Madhesis with over-the-top accents and stereotypical clothing professions as Ram Bilas and Dhaniya. Shiva Shankar Rijal plays Joginder Paanwala, yet another Madhesi caricature, on Himalaya TV. (I am not going to link any of these because they are all very problematic and I’d rather not give them views. If you’d like to see examples, see this excellent article by Srizu Bajracharya.)
So it appears that some kinds of speech are not just tolerated but celebrated and admired and made popular. It is not that these Madhesi caricatures are funnier than Kshitiz’s comedy (they’re not); its just that they tap into a deep-seated ambivalence that a majority of Nepalis hold against Madhesis. That is why the ‘comedy’ of Sandip Chettri, Deepak-Deepa, and Shiva Rijal are allowed to be free. But when a comedian satirizes or makes fun of a dominant culture, i.e., the Newa, that is somehow off limits.
Some might say that Madhesis should’ve filed a police complaint against the comedians. If they had, can you imagine how that would’ve gone? First of all, it would’ve been difficult to even get the police to register the complaint. Then, they would have to contend with the power and privilege of Bahun-Chhetri men backed by giant media companies with endless pockets. Furthermore, even the courts would likely have thrown out the case, if it ever even got to court, on the basis of free speech. But in Kshitiz’s case, the courts are happy to make an example of him.
On Thursday, Kantipur daily asked an essential question about Kshitiz’s case in an editorial: did he make a mistake or did he commit a crime? In any crime, intent matters. Was Kshitiz’s intent truly to disparage and denigrate an entire community, one that likely includes his friends, acquaintances, neighbors and maybe even family? The Newa community took offense and that is their right. But did he commit a crime against that community is the question that needs answering? His mistake, and I believe it was a mistake, could’ve been opposed by calling for a boycott, writing articles that point out why his brand of comedy is problematic, holding a dialogue with him and other comedians. Misuing state power to place him in jail, maybe for five years, is wholly wrong.
Kshitiz’s case has received so much attention because it is clear that the man is young and still learning and appears to be genuinely remorseful. In an interview with Kantipur, he related how he is afraid for his life. He is clearly traumatized by the entire ordeal and who wouldn’t be? But clearly, those who are persecuting him don’t care. They are out for their pound of flesh and they will not rest until they get it.
Years ago, it was singer Durgesh Thapa who was hauled off to jail for promoting ‘anti-social’ behavior in his song, ‘Happy Tihar, Chiso Beer’. Then, it was comedian Pranesh Gautam arrested for a satirical review of a popular Nepali film. After that, it was rapper Vten jailed for allegedly disparaging the police and also promoting drug use in his music. Singer Prakash Saput was forced to take down a music video that was critical of the Maoist war. Now, it is Kshitiz.
These are clear signs that Nepali society is headed down a path of intolerance and retribution, for real or apparent slights. It is not just the police and the government but also powerful people within certain communities who are attempting to impose their pseudo-morality on artists who should be free to express themselves as they desire. Sometimes, artists create problematic works and that should be called out. Repurcussions can come in the form of boycotts and loss of revenue. Putting people in jail serves a much more insidious purpose — it creates fear and discourages people from speaking out. If the threat of jail looms over every performer, artist, comedian, singer, and actor, self-censorship will be in effect. And we as a society will be all the poorer for it.
Happenings this week:
Sunday - Man of the century Satya Mohan Joshi died at the age of 103. Joshi was Nepal’s foremost cultural historians and a three-time winner of the Madan Puraskar. He was a fixture on Nepal’s cultural stage and an endless repository of history and culture. He will certainly be missed.
Monday - Indigenous activist and Tribhuvan University professor of anthropology Om Gurung died at the age of 68 from cancer. Gurung, former general secretary of the Nepal Federation of Indigenous Nationalities (NEFIN) was a stalwart activist when it came to issues of social exclusion and indigenous rights. He was also one of the founding members of TU’s Department of Sociology and Anthropology. His loss too will certainly be felt.
Tuesday - Numerous national records in athletics and weightlifting were set at ninth national games that started on October 14 and concluded on October 20. Jayarani Tharu, an athlete from the Tribhuvan Army Club, set three national records in the long jump, 100m hurdles, and 400m hurdles.
Wednesday - Sandeep Lamichhane, former captain of the Nepal’s national cricket team, continued to languish in jail over rape charges as his judicial custody was extended by four more days. After being accused of rape by a minor, Lamichhane had been arrested by police upon arriving in Nepal on October 6. He has been in police custody since then, with the custody term being extended thrice now.
Thursday - Comedian Apoorva Singh Kshitiz was released from police custody after posting Rs 250,000 bail. Kshitiz is accused of a host of crimes, the total penalty of which does not amount to over Rs 100,000. For details, see deep dive above.
Friday - New American ambassador Dean Thompson presented his credentials to President Bidya Devi Bhandari. Thompson comes in at a time when the geopolitical rivalry between the US and China has been getting more and more heated in Nepal.
That’s all for this week. Off the Record will be back in your inboxes next Friday. I shall see you then, in your emails, for the next edition of Off the Record.
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