In the movie "Crew," starring Kareena Kapoor, Kriti Sanon, and Tabu as air hostesses working for Kohihoor Airlines, the main characters find themselves in a tough spot. They haven't been paid their salaries for six months, and there's talk that the airline might go bankrupt. When Tabu bravely confronts the HR head, her fears are confirmed. To make matters worse, Tabu is convinced that she won’t be able to access her 20-year provident fund, which she needs to fulfill her dream of opening a restaurant in Goa. Feeling desperate, the women resort to gold smuggling. However, thinking about the movie prompted me to consider legal ways in Nepal where Tabu could have fought for their rightful provident fund, ensuring she got the money she deserved without breaking the law.
Tabu had a couple of options to pursue her provident fund. Firstly, she could have directly approached the Labor Court to make her claim. Alternatively, looking at it from the perspective of insolvency, according to Labor Act 2074 Section 149, when a company shuts down or goes bankrupt, employees are supposed to be the first ones to get paid what they're owed, including salaries and benefits. However, this rule doesn't apply if the company goes bankrupt because of criteria outlined in the Insolvency Act 2063. If Kohinoor Company had opted for voluntary liquidation under the Company Act 2063, employees would have been the first in line to receive their unpaid remuneration and benefits. However, given the director’s involvement in illegal activities like gold smuggling through the company, they wouldn't want to shut down the company officially. For voluntary closure to happen, directors comply with statutory duty to wind up the insolvent company..
Another option for Tabu to obtain her provident fund is through compulsory liquidation, as outlined in Section 4 of the Insolvency Act. This process involves people who are at least 10% of the company's creditors, or a shareholder with at least 5% of the total shares, or a debenture holder with at least 5% of the total debentures, or the appointed liquidator initiating the procedure. 
Tabu could gather any of such people and prepare a statement detailing the company's debts and other necessary documents. Upon application from the creditor, the court would appoint an investigation officer to assess whether an immediate liquidation order should be issued, or if the restructuring of the company is enough. If the court decides to liquidate the company, a liquidator is appointed, and all liabilities must be settled during the process. After expenses are paid, including those of the investigation officer and restructuring manager, payments are made in a specific order, including remuneration, wages, provident fund, and gratuity owed to employees.

A Review of 'Crew' and the Quest for Provident Fund

Culture is an expression of human society, and matters in a social relationship as it provides an enabling environment for building self-confidence and fostering an attitude of trust, solidarity, and peace.[1] There exist different cultures in a single society. One needs to have the ability to respect own as well as other’s cultures. Cultural tolerance means tolerating, nurturing, honoring, and preserving other racial or cultural ideas, beliefs, and actions contrary to one’s cultural ideology. It is giving acceptance to the differences of others without judgment. In other words, it is a respect for diversity and making peace possible. The world is a place of cultural diversity. The Universal Declaration on Cultural Diversity states that Cultural diversity is as important to humanity as biodiversity is to nature as a source of exchange, innovation, and creativity. In this sense, it is humanity's common heritage that should be recognized and upheld for the benefit of current and future generations.[2] Cultural tolerance is a much-needed principle in strengthening social cohesion and promoting greater solidarity around the world.
The notion that all beliefs, customs, and ethics are relative to the individual within his social context is known as cultural relativism. It states that no culture is superior to any other culture while comparing its morality, law, politics, etc. Cultural relativists believe that all cultures are valuable in and of themselves. All beliefs, values, and aesthetics are completely relative to the individual within a cultural identity. Cultural relativism can lead to cultural tolerance. It states that there is no right and wrong or good or bad in a diversity of cultures. One must be tolerant of cultural diversity to achieve cultural tolerance.
Cultural tolerance begins with self-awareness and an understanding of one's own cultural background, values, and beliefs. This self-awareness is crucial because it helps individuals recognize their biases and assumptions that may arise from their own cultural upbringing.
The next important step in fostering cultural tolerance is to refrain from passing judgment on the values and beliefs of people from different cultural backgrounds. Instead of imposing one's own cultural norms and standards as the universal benchmark, there should be a willingness to accept and respect the differences that exist among various cultures.
It's essential to acknowledge that discomfort might arise when encountering cultural practices or beliefs that differ from one's own. However, true cultural tolerance involves keeping an open mind and seeking to understand the perspective and context of others. For instance, the example of a Brahmin man feeling uncomfortable about a marriage practice common among the Magar community illustrates the need for acceptance of such cultural differences. In this scenario, cultural tolerance means recognizing that what may seem unusual or uncomfortable to one culture is a cherished tradition in another, and respecting that diversity is a fundamental aspect of a multicultural world.
Cultural tolerance is performed not only by individuals and society but even the law recognizes cultural differences and is tolerant. Legal multiculturalism holds that, in a society characterized by deep cultural pluralism, the role of the law is to operationalize a political commitment to multiculturalism by serving as custodian and wielder of the twin key tools of tolerance and accommodation.[3]
The constitution of Nepal (2072) is the fundamental document of Nepal where equality is a basic principle. The preamble of the Constitution of Nepal mentions protecting and promoting social and cultural solidarity, tolerance and harmony, and unity in diversity by recognizing the multi-ethnic, multi-lingual and multi-religious, multi-cultural, and diverse religious characteristics. Article 3 of the Constitution of Nepal mentions Nepal to be multiethnic, multilingual, multi-religious, and multicultural in characteristics. The people of Nepal having common aspirations and being united by a bond of allegiance to national independence, territorial integrity, national interest, and prosperity of Nepal, collectively constitute the nation.[4]
The principle of equality before the law applies to all citizens, and fundamental rights are enshrined to prevent any infringement of these rights by the state. In accordance with Article 18 of Nepal's Constitution, the right to equality extends to matters of religion and caste. Likewise, Article 26 mentions religious freedom where every person who has faith in religion shall have the freedom to profess, practice, and protect his or her religion according to his / her conviction.[5]
The recognition, protection, and respect towards religious and cultural freedom reflect religious and cultural tolerance. The Constitution of Nepal Article 32 provides the right to language and culture. Every person and community has the right to participate in the cultural life of their communities. This reflects the role of the constitution in implementing cultural tolerance. Every Nepalese community is provided with the right to preserve and promote culture, cultural civilization, and heritage.[6] All these constitutional provisions show the legal practice of tolerance. Article 24 of the constitution has stated the Right against untouchability and discrimination. No one should be treated with any kind of discrimination. All kinds of discrimination are punishable by law. No person shall be discriminated against for their caste, ethnicity, community, occupation, or economic background.
In cases where untouchability is observed in practice, penalties are enforced as a measure to address this issue. Additionally, discrimination between different cultural groups has been explicitly forbidden, and affirmative action has been implemented to promote equality. Various reservations and quotas have been established to uplift socially, politically, and economically marginalized communities.
These special provisions and reservations are designed to protect, empower, and foster the development of citizens who belong to socially or culturally disadvantaged groups. This includes women, Dalits, Indigenous people, Madhesi, Tharus, Muslims, laborers, senior citizens, and various other oppressed and underprivileged communities. The law has instituted these measures to rectify historical injustices and ensure that these marginalized groups have equal opportunities and representation in society.
The 'Pun Devi Maharjan v. Government of Nepal' case serves as a noteworthy example of cultural tolerance within Nepal. In this case, the petitioner had argued that the traditional practice of selecting a young child as a living goddess, known as 'kumari,' and imposing various social restrictions on her amounted to a violation of child rights. After a thorough examination, the court determined that the 'kumari' tradition held significant cultural and religious importance in the country.
While the court did implement certain reforms to address concerns related to this practice, it did not completely abolish it. The court's ruling was based on the premise that as long as the custom did not infringe upon fundamental rights, it should be regarded as an integral part of Nepalese culture. This decision reflects a balanced approach that respects cultural traditions while ensuring the protection of individual rights and freedoms. It demonstrates how cultural tolerance and the preservation of cultural practices can coexist within the legal framework.
Nepal is deeply rooted in its customs, traditions, and cultures, and these aspects are reflected in the legal system. For example, in contemporary Nepal, killing a cow is considered a crime due to the profound reverence for cows within Nepalese society. This sentiment is deeply ingrained, viewing cows as sacred beings. This belief is codified into law in Chapter 9 of the Muluki Ain Chaupayako Mahal, specifically addressing the punishment for cow slaughter.
In the case of Kumar Darji v. Nepal government, individuals were criminally charged and sentenced to 12 years in prison for killing a cow, as stipulated by the Muluki Ain 2020 Chapter on Quadruped (Chaupaya ko mahal). This case underscores the seriousness with which Nepal's legal system treats offenses related to cultural and religious beliefs.
Moreover, the Nepalese legal system also acknowledges and preserves customs and practices that are deeply rooted in certain communities. For instance, it allows marriage within ancestral lineages among communities such as Gurung, Limbus, and Rai. Similarly, polyandry is permitted in specific communities like the Sherpas. These exceptions demonstrate a legal framework that respects and accommodates diverse cultural practices, even if they deviate from international norms or the laws of other cultures.
Nepal is multi-lingual and multi-ethnic. multi-religious and multi-cultural country. It is a tolerant country. Everyone has equal sitting and equal respect to each other. Nepal is considered to be a culture and religiously tolerant country for a long period. Various examples show Nepal to be a culturally tolerant nation. King Tribhuvan, a born Hindu King is the one who declared Buddha Jayanti as a national holiday of a Hindu kingdom in the past. Similarly, the Swayambhunath temple one of the UNESCO world heritage sites of Nepal consists of two statues one Buddhist and one Hindu together. Nepal is one of the countries that has not had a war in the name of culture and religion. Cultural tolerance is the basis for constitutional democracy.
In today's globalized world, inter-religious tolerance goes beyond the cooperation of religious believers alone; it involves the active participation of all members of society in promoting goodness. This commitment to tolerance is crucial for strengthening peace and stability worldwide.[7]To enhance social relations and prevent conflicts, it is imperative to establish a space for mutual understanding, negotiation, and tolerance that transcends the boundaries of religions, cultures, languages, and ethnicities.
Growing up in a diverse country like Nepal, one can witness numerous manifestations of cultural diversity. Simply walking along the streets of Kathmandu, you can observe people engaged in artistic practices at temples while hearing Christian congregations reciting verses in a church. Similarly, you may encounter Buddhists dressed in their traditional attire. It's the acceptance of cultural differences and the absence of cultural intolerance that fosters such harmony in a relatively small place like Nepal. This acceptance brings together people with diverse languages, practices, customs, beliefs, and values, ultimately promoting social harmony and unity.[8]
Therefore, in cases pertaining to issues such as sexual orientation, disability, political dissent, and often, religious individuals seeking protection from discrimination, constitutional rights have consistently played a pivotal role in achieving positive legal outcomes. This demonstrates that the principles of cultural tolerance are inherently embedded in the legal system itself.
Law, as a system, serves as an interpretative worldview consisting of symbols, thought categories, and specific behaviors that give meaning to human experiences. Within this framework, constitutional rights act as a guiding force, ensuring that individuals are protected and that their diverse backgrounds and beliefs are respected. As a result, the legal system serves as a cornerstone for promoting cultural tolerance and safeguarding the rights and dignity of all members of society.
<a href="#_ftnref1">[1]</a> Ananda Aditya , ‘The Civil Socirty- State Interface in Nepal’,Friedrich Ebert Foundation, First edition 2011 p.77
<a href="#_ftnref2">[2]</a> Universal Declaration on Cultural Diversity, 2 November 2001, Article 1
<a href="#_ftnref3">[3]</a> <a href="https://deliverypdf.ssrn.com/delivery.php?ID=613115082115012005103026124017077004105010020053060007069094000069004121002099113030098123043125040056029119109015120124091084048016013022088023114102115121117090051048056017116083064010026073122101126112020002087118124022127084073118010111127103082&#x26;EXT=pdf&#x26;INDEX=TRUE" target="_blank" rel="noreferrer noopener">Benjamin L. Berger The Cultural Limits of Legal Tolerance</a>
<a href="#_ftnref4">[4]</a> Nepal ko Samibhadh 2072, Constitution Of Nepal 2072 Article 3
<a href="#_ftnref5">[5]</a> Nepal ko Samibhadh 2072, Constitution Of Nepal 2072 Article 26(1)
<a href="#_ftnref6">[6]</a> Constitution Article 32(3)
<a href="#_ftnref7">[7]</a> <a href="https://www.forestrynepal.org/why-is-religious-tolerance-necessary-in-nepal/" target="_blank" rel="noreferrer noopener">Kathleen, Why is religious tolerance necessary in Nepal</a>
<a href="#_ftnref8">[8]</a> <a href="http://europe.chinadaily.com.cn/a/201906/10/WS5cfd9107a310176577230235.html#:~:text=Cultural%20inclusiveness%20and%20tolerance%20can,values%2C%20and%20therefore%20promote%20harmony" target="_blank" rel="noreferrer noopener">Chen Haiming, *China Daily</a>

Intersecting Identities: Law and Cultural Tolerance in Nepal

Bhim Pariyar, a child growing in the streets of Katmandu wondering here and there collecting scrabs for money after meeting his other street friends starts squeezing dendrite from carpet glue into a plastic bag and inhaling the fume. One of his friends expresses, ‘I wish I could have actual food to feed this hunger stomach than hallucinate of having no carvings.’ Another friend who had been severally struck by police for misunderstanding him of a thief as he is so-called ‘khate’ for society says, ‘No one is going to come and feed you, just inhale it and forget the pain we are going through.’
A child is someone young in between infancy and puberty.The Committe for Rights of Child defines children as someone who has not attended the age of 18. Nepal has around 5000 street children. The term street children are very broad, the public normally assumes homeless children visible on-street as street children but in reality, it is more than just children without a home. There is no specific definition of street children in any international laws however UNICEF has mentioned three types of street children, street living children, street working children, and children from street families. Despite the problem and differences in defining street children, we can understand them by referring to children related to the street i.e. living on the street or being on the street.
The reality of street children is very fragile. The main reasons for children to migrate to the street in Nepal are family violence, poverty, escape from conflict, abuse, discrimination, etc. Sexual exploitation and abuse are some of the major problems of street children in Nepal. Not only female but male children are also found sexually abused by foreigners and locals. More than four-fifth (86.6%) of street-involved children are illiterate in Nepal. They have limited access to health care with a lack of proper education and shelter. Insufficient food production, poor sanitation facilities have created health problems for the street children. Among all these above problems one of the increasing ones is the use of drugs.
Drug use is illegal for all ages in Nepal but there are similar addictive substances like a drug which are easily available and consumed by children. According to a report of Child Workers in Nepal Concerned Centre (CWIN), 56% of street children smoke and 26% inhale drugs. Most of these children are either using cigarettes, alcohol, or marijuana. Although there is a law against the use of marijuana and there exists a policy of minimum age for alcohol purchase to be 21 years. Children around age 10 are easily provided with access to cigarettes or alcohol. Similarly, ‘about 95% of street children are involved in dendrite sniffing’ and there is no policy that restricts selling dendrite. Dendrite sniffing is a cheap, easily accessible temptation that has an effect like drugs and is harmful to physical and mental well-being. Children are the future of this nation, this world and as a source of hope, inspiration in society if they are left socially deprived or if measures for their well-being are not taken care of then the whole nation, the world are at stake.
Every human being has inherent rights for being human, such rights are known as human rights. Human rights are all universal, inalienable, indivisible, interdependent, and interrelated rights. Children are also entitled to human rights. They are one of the most vulnerable groups with special needs which led to the creation of separate child rights along with human rights. Child rights are the human rights of children regardless of their age, race, gender, etc. In November 1989 UN General Assembly adopted the Convention on the Right of the Child (CRC) which is the most comprehensive international convention and addresses a full range of rights for children.
CRC is the most ratified international human rights convention with around 193 countries as a party. Although there is no mention of the term street children under CRC if we analyze the convention then from the preamble to various articles the rights of street children have been addressed. The preamble stated that there are children in all states of the world who are living in exceptionally difficult conditions and such children need special protection, Street children fall under this category. Since CRC and its optional protocols are for the rights to be ensured, protected, and fulfilled. Article 2 of the CRC mentions that the state needs to ensure the rights of a child without discrimination of any kind on ‘any status’. UN General Comment 21(2017) on children in street situations para 25 included street children under ‘any status’ which ensured the right against discrimination to street children. Article 20 is more relevant to street children. It mentions the need for special protection to a child temporarily or permanently deprived of his/her family or family environment or in whose best interest cannot be allowed to remain in such an environment. States needs to take all possible measures to protect a child who is in care of parent(s), guardian(s), or any other person from physical or mental violence, abuse, injury, exploitation including sexual abuse (Article 19)
Article 3(1) of the convention states the best interest of children to be a primary consideration. ‘The obligation attached to these rights is to secure the holistic physical, psychological and moral integrity of children in street situations and promote their human dignity as these children are particularly vulnerable.’ CRC has also mentioned state parties to ensure the survival and development of the child. The development word needs to be interpreted as whole physical, mental, spiritual, moral, psychological, and social development. Along with the development, a state needs to ensure the right to live with the dignity of street children by refraining from violence, discrimination, and harm caused to them. Adequate standard of living for the physical, mental, spiritual, and moral well-being of street children is much necessary and to ensure this as per article 27(CRC) state needs to assist parents or others responsible for the child along with providing material assistance and support programs. Child labor is also made prohibited and punishable in this convention. Even the International Labor Organization Convention 182 prohibits all forms of child labor including slavery, trafficking, and forced labor. Along with these laws, there are various provisions in International Covenant in Civil and Political Rights ( ICCPR) and International Covenant in Economic, Social and Cultural Rights (ICESCR) for their protection. Domestic laws like The Act relating to Children 2075 also protect the right of these children.
Despite all these laws, the problems of street children are quite evident. To address these obstacles state, need to make policies that can improve the existing situation of street children. There is a need for the state to make legislative and policy reviews of the laws, and acts formed should be ‘implemented by enabling policies, mandates, operating procedures, guidelines, service delivery, oversight, and enforcement mechanisms, and developed in collaboration with key stakeholders including children in street situation . Along with laws, there is a need for the state to provide support to civil society which can be in form of funding, accreditation, or regulation. The state needs to make necessary strategies to address causes and problems.
The problem of the use of drug-like substances is provoked due to various other problems faced by these children. If other problems are solved then the solution for dendrite sniffing or use of other toxic substances can be figured out. The story of Bhim Pariyar and his friends is a story of every other street child. If according to the law states works on providing an adequate standard of living for them and work for their survival and development along with awarding them as well as the general public, shopkeepers about the harmful effects of toxic substances consumed then this issue can be solved.
They also need to take into account the measures for immediate implementations such as stopping round-ups or the arbitrary removal of children from public spaces, brutal behavior, and name-calling, etc., and measures that need to be implemented progressively such as comprehensive social protection. There is a need for a continuous and effective protection system for street children. One of the effective ways the protection of street children can be by creating a family-like structure for those children who are deprived of family and a caring environment for those street children who deprive family support. From policymakers to health, education, social workers, the public all need to be provided with basic training in child rights and understanding of the situation of street children so the gap in law and practice are addressed.
Therefore, it can be concluded that there are various causes for a child for being on street or part of the street and also various problems faced in the street. In the first place, children being in the street shows the problem of the inapplicability of international laws that their nations are parties to. In addition to this these children after coming into the street also faces several problems, causing a gap between laws that address them and the actual situation. The increasing number of children in the street, their vulnerability, and their addiction to harmful substances have shown the need for the state to take necessary measures to control this situation.
<h2>References</h2>
1. <a href="http://www.cwin.org.np/phocadownloadpap/occasional_publications/glue.pdf" target="_blank" rel="noreferrer noopener">Glue Sniffing among street children in the Kathamandu valley’</a>
2. Committee on the Rights of Child General Comment NO.21,2017
3. Convention on the Rights of the Child, 2 September 1990, OHCHR
4. <a href="https://www.springer.com/cda/content/document/cda_downloaddocument/9783319439181-c2.pdf?SGWID=0-0-45-1604382-p180186271" target="_blank" rel="noreferrer noopener">The History of Children’s Rights</a>
5. <a href="http://www.cwin.org.np/phocadownloadpap/fact_sheets/street%20children.pdf" target="_blank" rel="noreferrer noopener">5. Street Children in Nepal, Child Workers in Nepal Concerned Centre,CWIN</a>
6. <a href="https://www.thenewhumanitarian.org/report/74899/nepal-street-children-sniff-glue-beat-hunger-pangs" target="_blank" rel="noreferrer noopener">Street children sniff glue to beat hunger pangs’</a>
7.<a href="https://www.streetchildren.org/wp-content/uploads/gravity_forms/1-07fc61ac163e50acc82d83eee9ebb5c2/2017/07/General-Comment-No.-21-2017-on-children-in-street-situations.pdf" target="_blank" rel="noreferrer noopener">UN Convention on the Rights of the child, Committee on the Rights of Child General Comment NO.21(2017) on children in street situation</a>

Street Children and their Addiction to Drugs in the context of Human Rights 

E-commerce law plays a vital role in governing the fast-paced world of online business. It serves to protect the rights and interests of consumers by ensuring transparent pricing, clear product descriptions, and reliable return policies. On January 30, 1997, the United Nations General Assembly adopted the United Nations Commission on International Trade Law (UNCITRAL) Model Law on E-Commerce through a resolution. This Model Law offers recommendations to all states, suggesting that they give favorable consideration to its provisions when enacting or revising their laws related to electronic commerce. Nepal Government has introduced different laws in response to the need of implementation of the resolution which includes the Electronic Transaction Act 2063, Consumer Protection Act 2075, Competition Promotion and Market Protection Act 2063, Advertisement Act 2076 etc.
E-commerce was introduced in Nepal primarily for Nepalese living abroad to send gifts back home. Initially, few online stores served as platforms to promote e-commerce rather than selling products. Today, the e-commerce sector is experiencing a rapid surge in growth, driven by globalization and increased internet usage. However, the lack of clear legal provisions and guidelines in existing laws has created regulatory complexities, particularly in areas such as data privacy, delivery, consumer protection, and digital payments. This has presented challenges for entrepreneurs looking to enter the e-commerce market and has caused consumers to be cautious about trusting online platforms.
To address the regulatory complexities hindering the growth of Nepal's e-commerce sector and to tap into its potential benefits, the government has taken proactive measures by drafting a new e-commerce bill. The primary objective of this bill is to establish comprehensive and transparent legal frameworks that cater to various concerns and foster a secure and trustworthy e-commerce environment in the country. The bill's proposal emphasizes the reasons behind its creation, which include promoting employment opportunities, facilitating convenient delivery of goods and services, and establishing a platform for easy supply of raw materials, household items, and agricultural materials.
By implementing these well-defined regulations, the government seeks to instill confidence among both businesses and consumers. This move will contribute to making the e-commerce sector more robust and reliable, encouraging entrepreneurs to venture into online businesses and consumers to trust and engage in online transactions. Ultimately, the aim is to drive the growth of the e-commerce market and harness the potential benefits of digital commerce in Nepal's evolving digital landscape. Through this proactive approach, Nepal hopes to create a thriving and inclusive e-commerce ecosystem that benefits the economy and society.
According to the bill, an electronic platform is defined as a system that utilizes computers, mobile devices, or similar electronic devices to create various digital mediums such as websites, applications, software, internet, intranet, and other channels for collecting, transmitting, and compiling information related to product or service business. Furthermore, Section 2(l) of the bill provides a specific definition for e-commerce, categorizing it as an electronic medium primarily utilized for buying or selling products or services.
According to Section 3 of the bill, individuals, companies, firms, or institutions incorporated as per the prevailing company act are allowed to operate an e-commerce business. However, they must obtain approval from the relevant authority. The approval process depends on the nature of the business. For e-commerce operations involving the trading of goods, approval is required from the Department of Commerce. On the other hand, if the business focuses on manufacturing goods and materials, approval is granted by the Department of Industry. This regulatory framework ensures that e-commerce businesses operate within the law and follow specific guidelines based on their scope of operations. Additionally, any e-commerce business is required to establish an e-commerce platform for conducting its operations and must apply for registration on the e-commerce business portal. The bill has clearly mentioned that failure to do so results in a penalty of a fine from Rs. 10,000 to Rs. 50,000
While the registration and licensing procedure for e-commerce businesses in Nepal may appear effective in terms of consumer confidence and ensuring compliance, it also poses challenges for e-commerce operators. The definition of e-commerce provided by the regulations focuses on creating dedicated e-commerce platforms, which overlook, and disregards e-commerce activities conducted through social media platforms. In reality, a significant portion of e-commerce business in Nepal takes place on platforms like Instagram, Facebook, and TikTok.
The regulations do not clearly specify whether social media can be considered e-commerce platforms or not. This lack of clarity raises questions for small startup owners who conduct their e-commerce activities through social media. They may be unsure if they need to register as per the company law and obtain approval, and if they should create their own websites or dedicated e-commerce platforms or not. This ambiguity may discourage some entrepreneurs from starting their businesses or hinder their growth.
The restrictive definition of e-commerce and the absence of clear guidelines for e-commerce conducted on social media platforms could be a barrier for small businesses and may stifle innovation and entrepreneurship in the e-commerce sector in Nepal. To foster a thriving e-commerce environment, it is essential for the regulations to address the emerging trends and dynamics of e-commerce, including the prevalence of social media as a significant platform for conducting online business.
The e-commerce bill seems to have tried to address the rights of users of the platform. According to Section 6 of the bill, it is essential to disclose comprehensive information about the products and services being offered to customers. This includes providing the name, nature, design, trademark, and descriptions of the products, along with relevant images or outlines and their respective weights. Additionally, the total price of the product, inclusive of taxes and the applicable rate, should be clearly stated to avoid any confusion. The cost of delivery should be transparently described, and any necessary disclaimers or precautions for product or service usage must be communicated to the consumers. Specifics such as the time and date of delivery and the medium through which the service will be completed are crucial to managing customer expectations. Furthermore, e-commerce platforms should clearly outline warranty or guarantee information, including its duration, if applicable. Customers should also have access to important details like the date of manufacture, expiry, and best-before information, along with other relevant terms and conditions. Lastly, providing access to reviews, ratings, and feedback from other consumers helps build trust and confidence in the products and services offered on the e-commerce platform.
Along with the disclosure of information, there are several other key responsibilities to uphold to ensure compliance with the law and maintain the integrity of the platform. The e-commerce business owner must refrain from engaging in any deceptive practices. They cannot pose as pseudo-consumers or manipulate product ratings, reviews, or feedback on their platform to mislead customers. Honesty and transparency are essential to build trust and credibility with consumers. It is the responsibility of the e-commerce business owner to ensure that all advertisements for products and services are accurate and do not contain false or misleading information. Any claims or representations made in advertisements must be substantiated and truthful. The e-commerce business owner as per the bill must stand by the warranties and guarantees provided for the products or services sold on the platform.
In addition to the responsibilities of the ecommerce business operator there are other different provisions in the presented ecommerce bill that look beneficial for the users. Section 10 of the e-commerce bill states that if a product or service delivered to the buyer is not as per the order, the buyer has the right to return it to the e-commerce and it is the duty of the platform to process such return. In this scenario, the seller has two options to resolve the issue. Firstly, the seller can provide another product or service that meets the buyer's original order and requirements. This means replacing the incorrect item with the correct one as per the buyer's request. Secondly, if the seller is unable to provide the correct item or the buyer does not wish to have a replacement, the seller is obliged to initiate a refund.
The issue of consumer confidentiality and privacy has also been addressed by the bill. According to section 12, e-commerce platforms are required to treat the personal information of users as confidential and not share or use such information without the explicit consent of the individuals. However, there is a provision that allows e-commerce platforms to use personal information as per the terms of the contract or agreement with the users.
The e-commerce bill has provided a separate provision for the responsibility of e-commerce platform like Pathao, daraz etc. i.e. the platform that serves as a mediator and facilitator than the business operator themselves. Hence according to Section 14, some of the responsibilities that they need to fulfill as per the bill include:
1. It must ensure that all information regarding products or services displayed on the platform is clear, accurate, and truthful. They should only sell products and services that are explicitly mentioned and described on the platform, avoiding any misleading or deceptive information.
2. It is required to maintain records of all transactions involving the buying and selling of products or services on the platform. These records should be preserved for a minimum of six years, ensuring transparency and accountability in the platform's operations.
3. It must ensure that the warranty and guarantee conditions offered by sellers for their products are fulfilled.
4. In cases where multiple sellers offer similar products, it must ensure that there is no discrimination or preferential treatment between the sellers. All sellers should be given equal opportunities, and if any special offers or facilities are provided by certain sellers, it should be clearly communicated to the buyers.
5. Before listing any product or service on the platform, there should be a contract or agreement between the mediator and the seller. This contract should outline the terms and conditions for selling on the platform, ensuring mutual understanding and compliance with the platform's rules and regulations.
6. If a product or service is returned by a user due to not meeting the terms of the contract, it is responsible for facilitating the return process and refunding the amount to the user as per the platform's policies and guidelines.
The e-commerce bill recognizes the significance of contract formation in regulating the e-commerce business. Various provisions within the bill underscore the importance of establishing contracts between the parties involved in e-commerce transactions.
Section 7 of the e-commerce bill states that if there exists an electronic contract between the e-commerce platform and the seller, such contracts are considered to be formed in accordance with the prevailing contract law. This means that electronic contracts between the platform and the sellers are legally binding and enforceable, and they must adhere to the principles and requirements of contract law.
Section 14 of the bill emphasizes the need for a written contract between the seller and the e-commerce mediator platform before listing any product or service on the platform. This contract sets out the terms and conditions under which the seller will operate on the platform, ensuring mutual understanding and compliance.
In Section 16, the responsibility of users is highlighted where users are required to be aware of the contract they have concluded with the e-commerce platform and are expected to follow the terms and conditions set forth in that contract. This ensures that users understand their obligations and rights when using the platform.
The term "written contract" in the e-commerce bill may indeed lead to confusion, especially when it comes to e-commerce platforms that facilitate numerous transactions between multiple sellers and buyers. It may not be feasible for a mediator like Pathao, daraz, hamrobazar, etc to meet all the parties involved personally and conclude individual written contracts for each transaction. In such cases, it is crucial for lawmakers to clarify their intent regarding what constitutes a "written contract" in the context of e-commerce platforms. They may need to consider alternative methods of contract formation that are practical and efficient for digital platforms. This could include the acceptance of standard form contracts or electronic agreements, which are widely used in e-commerce settings.
Section 18 of the e-commerce regulation, which allows e-commerce platforms to enter into contracts with delivery persons or services, is particularly relevant for platforms like Pathao. Pathao operates on a freelancing model where individual riders provide delivery services to the platform's users.
By having the flexibility to contract with individual riders or third-party delivery services, e-commerce platforms can effectively manage and optimize their delivery operations. This model enables them to scale their delivery services as needed, depending on the demand from users.
The e-commerce bill aims to enhance consumer protection by placing greater responsibility on e-commerce platforms to facilitate warranties, exchanges, and refunds for faulty products or services. While this provision intends to ensure a safer shopping experience for consumers, it could inadvertently impact smaller businesses and local entrepreneurs operating on these platforms. Smaller businesses may lack the resources to handle complex warranty and refund processes on a global scale, potentially hindering their ability to expand and compete with larger enterprises. Additionally, shifting liability from sellers to the platform may cause e-commerce companies to hesitate in offering diverse products due to the fear of potential liabilities and compliance costs. This could lead to a reduced variety of offerings for consumers.
If the burden of warranties and refunds is shifted to intermediaries, there is a risk of sellers engaging in fraudulent activities, such as sending expired foods and shifting the liability to platforms serving as mediators.
It is important for lawmakers to carefully consider the implications of this provision on both consumer protection and the growth of e-commerce businesses. Balancing the responsibilities of platforms and sellers while ensuring consumer trust and business growth is crucial for creating a thriving and secure e-commerce environment in Nepal.
In general, e-commerce laws aim to address five key aspects: transaction legalization, consumer protection, intellectual property rights, cyber security, and data protection. While the e-commerce bill in Nepal attempts to cover these aspects, it lacks specific provisions on cyber security and does not adhere to the principle of being technology-neutral, as recommended by the UNCTIRAL E-commerce Model Law. Furthermore, the bill overlooks social media platforms as part of e-commerce and treats them differently from other digital platforms. To improve the effectiveness of the e-commerce bill, lawmakers should engage in discussions and consult with stakeholders and industry professionals to identify potential amendments.
One area that requires revision is the harsh punishment for not enlisting a platform in the portal or not creating a dedicated platform for business operations. The penalties, such as imposing huge fines, may be reconsidered to strike a balance between compliance and encouraging smaller businesses to participate in e-commerce.
Similarly, making intermediatory platforms liable and subject to imprisonment for delivering goods from another seller needs to be amended. This provision might create undue burden and hesitation among platforms in facilitating smooth e-commerce transactions.
The current e-commerce bill in Nepal does not specifically address the provision for the delivery of goods by motorcycles and bicycles, despite the significant presence of around 75,000 registered riders using such platforms in 2021. This omission raises the need for the bill to include regulations for ride-sharing platforms and their role in last-mile delivery services. Additionally, approximately 40% of the payments made on e-commerce platforms are digital transactions, yet there are no specific provisions in the bill that regulate the digital payment system. As a result, there is a crucial gap in ensuring secure and seamless digital transactions within the e-commerce ecosystem. The bill should consider addressing these issues to foster a more inclusive and well-regulated environment for the growing e-commerce sector in Nepal.
Thus, addressing these concerns and making necessary amendments, the legislation can foster a more secure, inclusive, and technologically neutral environment for e-commerce activities in Nepal. This will ultimately promote a thriving digital marketplace, protect consumer interests, and support the growth of both local entrepreneurs and larger businesses in the e-commerce sector.
<h2>References</h2>
1. <a href="https://na.parliament.gov.np/uploads/attachments/o7vdqh0q7f63btub.pdf" target="_blank" rel="noreferrer noopener">E- commerce Bill</a>
2. <a href="https://uncitral.un.org/en/texts/ecommerce" target="_blank" rel="noreferrer noopener">Electronic Commerce, United Nations</a>
3. <a href="https://kathmandupost.com/money/2023/07/05/new-e-commerce-law-to-ensure-consumer-protection" target="_blank" rel="noreferrer noopener">New E-commerce law to ensure consumer protection</a>
4. <a href="https://www.recordnepal.com/taken-for-a-ride-by-pathao" target="_blank" rel="noreferrer noopener">Roshan Sedhai, Taken for a ride by Pathao</a>
5. <a href="https://www.theseus.fi/bitstream/handle/10024/744250/Chapagai_Santosh.pdf?sequence=2&#x26;isAllowed=y" target="_blank" rel="noreferrer noopener">Santosh Chapagai, Opportunities and challenges of e-commerce to customers, comparative analysis of Nepal and Finland</a>
6. <a href="https://www.unescap.org/sites/default/files/3%20UNCITRAL_Session%208.pdf" target="_blank" rel="noreferrer noopener">UNCITRAL e- commerce texts and paperless trade facilitation</a>

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