The latest Order is part of a series of judgments in the courts of Nepal favouring gender and sexual minorities in the country and recognising their equal rights.
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IN yet another decision that will be seen as progressive by the LGBTQIA+ community and its allies, a single-judge Bench of Justice Til Prasad Shrestha of the Supreme Court of Nepal has passed an interim Order directing the establishment of a "transitional mechanism" for registration of marriage of gender and sexual minorities in Nepal.
To facilitate the process, the Order, passed on June 28, has further directed the office of the Prime Minister and the Council of Ministers of Nepal (PMCMN) to establish a "separate register of marriages" for couples belonging to gender and sexual minorities.
The interim Order recognises the marriage rights of individuals based on gender identity and sexual orientation relying on Article 18(1) (right to equality) of the 2015's Constitution of Nepal read with Section 69(1) (freedom of marriage) of The National Civil (Code) Act, 2017.
The Order also calls for necessary amendments to the concerned provisions relating to marriage and registration of marriage within the Civil Code, 2017.
The interim Order comes months after a division Bench of the Supreme Court of Nepal comprising Justices Nepal Hari Prasad Phuyal and Tanka Bahadur Moktan, recognised marriage equality in Adhip Pokharel & Tobias Volz versus Ministry of Home Affairs & Department of Immigration.
In that case, the court directed Nepal's Ministry of Law and Justice to prepare an equal marriage law or amend existing laws to accommodate the principles of equal marriage.
Yesterday's interim Order has been passed in response to a public interest litigation (PIL) filed by the President of Blue Diamond Society, Pinky Gurung, and other members representing gender and sexual minorities of Nepal. As per the PIL, the petitioner sought equal recognition and rights of couples belonging to gender and sexual minorities.
Blue Diamond Society, a Nepalese LGBT rights organisation, has been at the forefront of the struggle for the realisation of equal rights for gender and sexual minorities in the country.
The organisation's advocacy came into limelight in 2004 when the Supreme Court of Nepal was asked, through a petition, if activities, including advocacy, by or on behalf of homosexual and third-gender people and other gender and sexual minorities pursued by the Blue Diamond Society could be banned.
The petition alleged that the group was trying to make homosexual activities legal in Nepal.
The petition was rejected by the court. However, when another similar petition was filed, the Nepalese government responded that it had not framed any law to take action against homosexual persons and that there is no clear legal provision to take action against homosexual persons under the offence of bestiality in the penal code then applicable in Nepal.
Then, in Sunil Babu Pant versus Government of Nepal (2007), the office of the PMCMN submitted that the rights guaranteed under the Constitution of Nepal and other relevant laws are equally applicable to all citizens. It countered the argument of the petitioner that they are not allowed to exercise their rights and stated that the petition does not mention how these rights are obstructed.
It stated that making a separate law based on gender identity and sexual orientation is not necessary as the rights of gender and sexual minorities can be protected under the existing legal framework.
The Nepalese Supreme Court gave legal recognition to the third gender. It also observed that the right to marriage is an "inherent right" of an adult based on free consent and will.
The judgment was the result of long-drawn advocacy in which Pant— the first openly gay national-level legislator in Asia— and the Blue Diamond Society, founded by him, played a crucial role.
Since then, more than 15 years have passed and the Supreme Court of Nepal has passed many progressive judgments for the progressive realisation of the rights of the gender and sexual minorities.
However, there seems to be continued legislative inefficiency on the part of the government in implementing these directives of the court. In fact, certain instances like keeping the definition of marriage under Sections 67 (marriage deemed to be concluded) and 68 (marriage to be inviolable social bound) of the Civil Code, 2017, as strictly gender-binary indicate the government's unwillingness to give recognition to the equal rights of the gender and sexual minorities.
Advocate Ravi Nayak, judicial law clerk of Justice Hari Prasad Phuyal of the Supreme Court of Nepal, contributed in the writing of this piece.