Why the Supreme Court Ordered Kishor Shrestha’s Release: The Key Grounds Behind the Decision
Dragon Media Correspondent
The Supreme Court’s decision to allow senior journalist Kishor Shrestha to remain outside custody while the investigation continues was based on several specific legal and factual considerations, including the source of the disputed photograph, Shrestha’s actual editorial role, constitutional protection of press freedom and the availability of less restrictive alternatives to detention.
A division bench of Justices Dr. Nahakul Subedi and Balkrishna Dhakal did not declare Shrestha’s initial arrest unlawful. The Court noted that police had obtained an arrest warrant from the Kathmandu District Court and had also secured remand for investigation under the applicable criminal procedure law.
However, the Supreme Court concluded that even though the initial arrest had followed a legal process, there was no sufficient basis to continue keeping Shrestha in custody.
Earlier on Monday, the Kathmandu District Court had granted police an additional four days of remand. Later the same day, the Supreme Court ordered the District Police Range, Kathmandu, to release Shrestha on bail or place him under reporting conditions while allowing the investigation to continue.
One of the most significant factors considered by the Court was the source of the photograph at the centre of the complaint.
According to the order, the photograph referred to in the complaint appeared to have been posted on Facebook by the complainant himself. The Court further noted that the respondents had not rebutted this fact in their written response.
Shrestha had been accused of violating privacy rights by publishing material related to a photograph involving a lawmaker and a woman. The fact that the photograph had apparently already been made public by the complainant was therefore treated as relevant while assessing whether continued detention was necessary.
A second important ground was Shrestha’s actual editorial involvement in the disputed online publication.
The Supreme Court observed that although Shrestha was the editor of Janastha Weekly, it was undisputed that he did not have an editorial role in the Janastha online portal where the disputed news item had appeared.
Taken together with the circumstances surrounding the photograph, the Court found that there was insufficient justification to keep Shrestha in custody during the investigation.
A third major consideration was the constitutional protection afforded to press freedom.
The Court referred to the preamble of the Constitution of Nepal, which recognises full press freedom alongside multiparty democracy, fundamental rights, human rights and the rule of law.
It also invoked Article 19 of the Constitution, which guarantees the right to communication and protects the publication and dissemination of news, editorials, articles and other material through print, electronic and other forms of media.
The Court indicated that, as a general principle, an editor or publisher should not be arrested and detained merely because journalistic material has been published within constitutional and legal limits.
At the same time, the bench made clear that press freedom is not absolute. The Constitution permits reasonable legal restrictions in areas including contempt of court, public decency, morality and other grounds provided by law.
A fourth consideration was the need to balance press freedom against the constitutional right to privacy.
The complaint against Shrestha alleged that the publication violated the right to privacy guaranteed under Article 28 of the Constitution and the Privacy Act, 2018.
The Supreme Court stressed that the scope of a media organisation’s right to publish and an individual’s right to privacy must be assessed carefully and distinctly.
It made clear that if an online publication is alleged to have violated privacy rights, authorities may conduct an investigation and, where sufficient grounds exist, file a case before a competent court.
The Court therefore did not stop the investigation against Shrestha.
Instead, its finding was that investigation did not necessarily require continued detention.
This became the fifth major ground behind the decision.
The Court relied on Section 15 of the National Criminal Procedure Code, 2017, which allows an individual under investigation to be released on bail or placed under reporting requirements in appropriate circumstances.
On that basis, the Supreme Court directed that Shrestha be investigated outside custody rather than remain detained.
Another important part of the ruling concerned materials seized from Shrestha’s home and office.
Police had taken CPUs, computers, mobile phones, laptops, iPads and other electronic devices into custody.
The Supreme Court referred to the constitutional protections contained in Article 19(2) and 19(3), including safeguards against seizure of media materials and obstruction of media operations, and ordered that the seized items be returned.
The materials listed in the seizure records and produced before the Court are to be handed back to petitioner Saraswati Shrestha in the presence of a senior registrar of the Supreme Court, with an official receipt kept in the case file.
The ruling therefore makes three legal distinctions particularly clear.
First, the Supreme Court did not declare Shrestha’s initial arrest unlawful because the police had followed the formal arrest and remand process.
Second, it did not terminate the privacy-related investigation against him.
Third, it found that continued detention was unnecessary because of the factual circumstances of the case, Shrestha’s lack of an editorial role in the disputed online publication, the public origin of the photograph, constitutional press protections and the availability of less restrictive investigative measures.
The decision is therefore better understood not as an acquittal, but as a significant judicial assessment of necessity, proportionality and constitutional safeguards in the use of pre-trial detention against a journalist.
