Nepal: Another Victory for Blue Diamond Society and all LGBTIs
Another victory for Blue Diamond Society and all LGBTIs in Nepal.
The judges gave the verdict on 6th February 2008 on the ground that homosexual rights are also Human Rights and article 1, 2 and 4 of bestiality section of the Country Code 2020 and other laws, which the petitioner had taken as grounds for argument, were irrelevant.
Court hearing report on 6th February 2008.
On 18 June 2004, private lawyer Achut Prasad Kharel filed a writ petition in the Supreme Court of Nepal demanding a ban on homosexual activities and accused that the group (Blue Diamond Society) was trying to legalize homosexual activities. The petitioner also took the position of some articles of Nepali law such as articles 1, 2 and 4 of the bestiality section of the Mulki Ain 2020 (Country Code), some articles of Marriage Registration Act, marriage section, and article 23 of the International Convention of Civil and Political Rights prohibiting homosexual activities. The Registrar of the Supreme Court of Nepal denied registering the case as per article 15 (2) of Supreme Court Regulation 2049. The Registrar took the position that the personal lives of homosexuals and their personal sexual activities would not be a matter of criminal law. It was argued that the writ petition was not a matter of public interest litigation. The petitioner then challenged the decision of the Registrar for not registering the writ petition. On July 12, 2004, the Supreme Court issued a show cause notice to the defendants to respond to the writ within fifteen days indicating why homosexual activities should not be banned. 1 Nepal Government, Prime Minister and Office of the Council of Ministers 2 Ministry of Law Justice and Parliamentary Affairs 3 Ministry of Home Affairs, 4 Chief District Officer (CDO), Kathmandu. The petitioner did not make Blue Diamond Society the defendant but being the group concerned, the Society filed an application for legal litigation saying that the petition had strongly advocated for a ban on homosexual activities and accused the group of trying to make homosexuality legal. BDS argued that the subject was of public interest litigation and requested to be granted permission to be the representative organization. The Nepal Government, Prime Minister and Office of the Council of Ministers responded that the petitioner had not given clear and strong grounds for making their office as defendants and the petitioner had not clearly mentioned the Ministry’s work and activities that have violated the fundamental and legal rights of petitioner. So, the Office said it had not violated any rights of the petitioner and the writ should be quashed. Ministry of Law Justice and Parliamentary Affairs responded that the petitioner had not clearly mentioned the Ministry’s work and activities that have violated the fundamental and legal rights of the petitioner. So, the Ministry argued that it had not violated any rights of the petitioner and the writ should be quashed. Ministry of Home Affairs responded that the claims of the petitioner were not justified. The Government of Nepal had not enacted any law to punish homosexuals and the argument where the petitioner had taken article 4 of Bestiality section of the Country Code, does not clearly mention the punishment of homosexual activities. So, the writ petition needed to be dismissed. Chief District Officer (CDO) responded that there was no clear provision in article 4 of the bestiality section to punish homosexual activities or unnatural sex. The writ should be quashed. The court set the time for 6 February 2008 for the final hearing on the petition. After hearing the pleadings of the private lawyer (who was the petitioner, Achut Prasad Kharel), the Division Bench’s Honorable Justices Balram K.C. and Mrs. Gauri Dhakal quashed the writ. The judges gave the verdict on the ground that homosexual rights are also Human Rights and article 1, 2 and 4 of bestiality section of the Country Code 2020 and other laws, which the petitioner had taken as grounds for argument, were irrelevant.
This is another great victory for Blue Diamond Society and all LGBTI Nepalese. We are very proud of our supreme court.
In Solidarity Sunil Babu Pant President Blue Diamond Society
Advocates Hari Phuyal (ICJ), Rup Naranya Shrestha (FWLD), Sapana Pradhan Malla (FWLD), Sharmila Dhakal (BDS), Bhuwan Prasad Nirula (BDS) and Sabin Shrestha (FWLD) represented the Blue Diamond Society (BDS).