A Writ Petition Submitted to The Supreme Court asking to ban open homosexual activities
The following is the translation of a petition submitted June 18th by a private-practice lawyer to the Nepalese Supreme Court. He basically asks to shut down the Blue Diamond Society, an NGO working on sexual-health issues and human rights. The petition accuses the group of trying to “make homosexual activities legal,” and demands that its activities be outlawed because homosexual conduct is a criminal offense in Nepal.
Matter: Request for issuance of certiorari mandamus including other required order pursuant to article 88(2) of the Constitution of the Kingdom of Nepal, 2047 (1990)
Advocate Achyut Prasad Kharel, a resident of Kabhrepalanchok District, Kharelthok VDC, Ward No. 4, Kharelthok ............ Petitioner
His Majesty's Government, Office of the Prime Minister and Cabinet, Singha durbar, Kathmandu .. ................... ................... ..............................1
His Majesty's Government, Ministry of Home Affairs, Singhadurbar,
Kathmandu ... ...................................... ...................................... ................1
Majesty's Government, Ministry of Law, Justice and Parliamentary
Affairs, Singhadurbar, Kathmandu ..............................................................1
District Administration office, Kathmandu...................................................1 ?Respondent
1. I the Petitioner attaching petition charge Rs 500/- applicable under rule 40(1) of the Supreme Court Regulation 2049( ) here with, pray the following under article 23 of the International Covenant on Civil and Political Rights, 1966. No 1 and 2 of the chapter on marriage of the new Muliki Ain (code of the Realm thereinafter referred to as "the code") no 4 of the chapter on "Bestiality" section 4 of the Marriage registration Act 2028 and article 88 of the Constitution of the Kingdom of Nepal 2047 (1990):
2. The petitioner is a student of law
pursuing a Master's degree in law at the Kathmandu School of law, Bhaktapur, under the Purbanchal University as well as a legal practitioner advocate. Being a conscious citizen involved in the legal professional, the petitioner considers that it is his civilian duty to obey the law. The petitioner is also aware of the role to be played by citizens in the implementation of law in the capacity of a conscious citizen.
If the existing Acts laws do not come into operation such legal provisions, practically almost inoperative, cannot ensure citizens' rights and titles. Not only this, but the non enforcement of the existing Act appears to be avoidance by state of its own responsibility, because the executive must conduct state affairs following laws enacted by the legislature. The rule of law can indeed be felt only when the executive conducts state affairs in accordance with the law enacted by the legislature. However, if laws are not enforced, it becomes clear that the executive is seeking to avoid the democratic practices of a civilized countries. From the very rule of law people can feel good governance.
3 However the inoperativeness of the law enacted by the legislature and the indifferent ness of the executive in operation aspect thereof clearly offends such matters as rule of law, good governance democratic governance system. The main issue the petitioner seeks to raise is the matter of homosexuality, which is prohibited by Nepalese law.
Nepalese law doesn?t validate homosexual relationship. Nepalese law prohibits sodomy or homosexuality- the sexuality against natural rule. However with the establishment of some organizations from the past 2-3 years to inspire homosexuality and projection by such organizations directly or indirectly homosexual relationship in the name of human rights has given birth to a public issue. Since it is necessary to ban the paid activities which are prohibited by Nepalese law, the petitioner has come to the door of the court pursuant to article 88 of the constitution of the Kingdom of Nepal 2047 (1990).
4 Even though Nepalese law forbids homosexual relationship and homosexual marriage due to the launching of program by organizations and no banning of His Majesty's Government's over such activities have contravened the existing legal system. Hence, the act of motivating homosexual rights in the name of human rights in contravention of the existing legal provision and His Majesty's Government's activities of exempting them have created a public debate.
This exemplifies, how deep down the non-governmental organizations habituating to milk dollar can full, in having the simple helpless and poor Nepalese people engaged in homosexuality in the name of human rights in contravention of the existing Act, law and publicizing themselves as human rights activities. The activities of an organization called Blue diamond established in Kathmandu, the capital of Nepal can be presented as its crystal evidence. Even when this organization committed to have the homosexuality legalized used to openly publicized in favor of homosexual
has openly organized program in favor of homosexuality, even when the program organized by homosexuals in favor of homosexual relationship and opinion expressed by them in its favor are broadcasted by television and His Majesty's Government has remained silent the public have felt that whether Majesty's Government itself is desiring to motivate homosexuality.
From the act of Majesty's Government remaining silent even when a program on homosexuals right was organized by the said Blue Diamond Society organization and publicity was openly made in favor of homosexuals right by making chief guest of the program a person holding a prestigious office of Deputy speaker of the parliament: when the homosexual marched a rally chanting slogan with play card, banner demanding homosexual right even when they openly publicized demanding thee right of homosexual relationship and homosexuality, it becomes clear that Majesty's Government is not committed in the obedience and implementation of the existing act law rule. Moreover this may be taken as a clear evidence of the weakness and indifferent of the local administration of Majesty's Government in obedience and implementation of law. Since such activity has created a debate of public interest, the petitioner has come to the door of the court in order to have banned the illegal activities carried out organized have banned and check the government's indifferent ness over the said activities
5 Even though the homosexuals have termed right to homosexuality as human rights in reality homosexuality is not human right.
The main features of human rights are universality, indivisibility, naturalness and any of these features. Those who advocate in favor of the homosexuals on grounds that since article 1 of the Universal Declaration of Human rights 1948 provided for that all human beings are born free and equal in dignity and rights and article3 provides for that everyone has the right to life, liberty and security of person and since all human beings includes homosexuals as well, the state can not deny rights to homosexuality have not understood the spirit of the said article 1 and
3. Indeed as they have said, homosexuals are also human beings. Nevertheless, they have not become human beings by virtue of being homosexuality as human been publicizing right to homosexuality as human rights in expectation of dollar must understand that the status of an offender convicted in a charge of murder and citizen of good characteristics is not equal. This reality s universal phenomenon. No international human rights instrument to which Nepal is a party and which is ratified by Nepal including the universal declaration of human rights have granted legality to the homosexuality. Therefore, the person and organization who publicizes right to homosexuality as human rights do not possess anything except bad intention of sexuality exploiting the people of the poor, helpless and the neglected class after having them attracted to the homosexuality. The petitioner's conclusion is that right to homosexuality is not human rights.
6 Even though it has been publicized from the past two-three years on behalf of some person or organization in favour of the right to homosexuality in the name of human rights. That right to homosexuality is a human right such publicity has no legal validity. No international instrument including the universal declaration of Human Rights 1948 has provided legal validity to homosexuality relationship and homosexuality.
Article 23(1) (2) (3) (4) of the international covenant on civil and political rights 1966, whilst holding that marriage is necessary for the foundation of family, clearly provides for that the state shall accept the right of men and women of marriageable age to marry and start family life and that no marriage shall be contracted without the free and full consent of the bride and bridegroom willing to marriage; provides for that marriage can be contracted between natural persons of opposite sex only. Article 23 of the international covenant on civil and political rights 1966 which is ratified by Nepal, also has not incorporated homosexual marriage and homosexual relationship. The petitioner wants to reproduce here the said article 23.
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.
2. The right of men and women of marriageable age to marry and to find a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouse.
4. States parties to the present covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage during marriage and its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. Hence the International covenant on civil and political rights ratified by Nepal also categorically provides for that for a marriage there must be one man and one woman; therefore, the spirit of the said section clearly denies homosexual marriage and homosexual relationship.
7 In the context of Nepal, it is certainly to radical to openly publicizes in favour of homosexual marriage homosexual relationship of human life, in order to have them legally recognised to publicizes homosexuality, which is characteristic weakness of human life, as human rights. Human Rights are the most essential, that is to say, the natural right entitled to be enjoyed by virtue of being human beings. The inherent virtues of human rights are universality, indivisibility, inaviobility, and naturaless, moreover, the concept of cultural relativism has also become in modern time, an integral part of human rights. If we consider also from the viewpoint of cultural relativism, homosexual physical relation and homosexual marriage are not acceptable to our social life style influenced by the Hindu religion
. Nowhere in the major religious book including the Bedas the ancient Hindu religious book, as well as the Brahman, Manusmriti, Upanishad, Puran etc homosexuality is supported. Even though from the observation of the artistic sexual policies of homosexual activities carved on the walls and tundal (arch) of the temple of Hindu god and goddess, if may be argued that homosexuality is not unnatural and has been easily practiced from the age of deities in the Hindu society. Nevertheless in arts reality cannot be find out by merely overlooking abstract artistic skillfulness. Our attention must be concentrated on the abstractness existing in the visible art. As the stand and formulas described in our religious books are not of etymological essence but full of meaning so are artistic pictures carved at the wall, tundal (arch) of our god, goddess are symbolic. Therefore, it is petitioner's conclusion that to want to overlook without entering into the inner spirit and native of our such symbolic artistic picture is to fail to understand the spirit and motive of the inner aspect of our religion and culture.
8 In the foregoing paragraphs, the petitioners has stated that sixteen international human rights instruments to which Nepal is party and which are ratified by Nepal including the Universal Declaration of Human Rights have not granted legal recognition to the homosexual physical relation, homosexual marriage that is to say homosexuality and that right to homosexuality is against the spirit and meaning of the international covenant on civil and political Rights 1966, out of the sixteen international instrument. Now the petitioner considers it necessary of make clear how homosexual physical relation homosexual marriage that is to say, right to homosexuality is illegal in various numbers of the chapter on 'Marriage' require opposite sex human beings, that is to say, man and woman for marriage. If a serious look is given to the provision of No. 1 of the chapter on Marriage subject to the provisions of this chapter. "Marriage may be entered into, save in the relation punishable by the chapter on by free will of the intending spouse; in cases where marriage has been entered into the same blood relation, such husband and wife shall be caused to be separated. Knowingly shall be punishable as set forth in the chapter on 'Incest", the meaning underlying in the clause. Such husband and wife shall be caused to be separated" clearly denotes that marriage will happen only within human beings of opposite sex, that is to say, man and woman. Similarly, pursuant to no 2 of the chapter on marriage'. "Marriage shall not be contracted or caused to be contracted unless in consent of the parent the age of the man and woman is eighteen years and in absence of the consent of the parents, the age is of twenty years". If the said provision is deeply studied, the meaning of "the age of man and woman for marriage clearly denotes that for marriage male and female are required. Similarly, section 4 of the marriage registration Act 2028 ( ) reads the marriageable conditions. Pursuant to section 4 of the Marriage Registration Act, 2028 "except these who are not eligible to enter the following male and female may enter into marriage under this Act"
i) If any one out of the man or woman does not have husband or wife.
ii)If any one out of the man or woman is insane and
iii) If the man has completed twenty two years of age and woman has completed eighteen years of age
Hence, the phase "the following man and woman" of this section it clear that marriage requires man and woman that is to say, marriage is contracted between a man and a woman thus, the provision mentioned in various numbers of the chapter on "marriage" of the new Muluki Ain (wife) as well as section 4 of the Marriage Registration Act, 2028 ( ) specifically provides for that for marriage man and woman are required. By the provision of that for marriage human beings of opposite sex is required, it becomes clear that homosexual marriage is not accepted by Nepalese law. When the provision requires that for contraction of marriage man and woman, that is to say human beings of opposite sex, it becomes clear that Nepal law recognizes. Only the physical relation to be established between married couples of opposite sex. Corollary of the provision that for marriage human beings of opposite sex are required is that homosexuality is not recognized. Moreover, no 1, 2, 3 of the chapter on bestiality of the code prohibits any one to have or course to have sexual intercourse with a female cattle or to have a cause to have any. Other unnatural sexual intercourse and prohibits women to have sexual intercourse by cattle and such act is punishable and provides sentence for it. Furthermore, No. 4 of the said chapter reads as follows: Whoever commits or cause to commit any other unnatural sexual intercourse save as provided for in other numbers of this chapter shall be punished with an imprisonment up to one year or five thousand rupees".
In considering the inherent meaning underlying in the phase "any other unnatural sexual intercourse save as provided for other number of this chapter" it becomes clear that this section 4 has incorporated unnatural sexual intercourse to be committed between man and man save the one with cattle. Unnatural sexual intercourse includes homosexual physical relation.
Therefore, Nepal law has for bided homosexual physical relation. The petitioner has made clear in paragraph 6 how in the Nepalese context, homosexual marriage and homosexual physical relation are illegal.
Hence, in the context that the provision of no 1 and 2 of the chapter on marriage and section 4 of the marriage Registration Act 2028 ( ) have provided for that for marriage human beings of opposite sex, that is to say man and woman are required, and that no 4 of the chapter on bestiality has handed unnatural sexual intercourse the Act of establishing an organization with the main objective of making the homosexual marriage and homosexual physical relation legal publicizing right to homosexually and the act of that organization of motivating homosexually by attaching right to homosexuality is incorporated in the preamble itself of the Constitution is directly illegal. Since the local administration remained silent even when a programme was organised with the a person holding a prestigious office of the Deputy Speaker of the Parliament, when a rally with placard, banner and chanting right to homosexuality slogan in favor of was organised and the said illegal acts were done in Kathmandu, the capital of the country, the petitioner has, in the absence of other remedy, come to the door of the honorable court fro issuance of certiorari, mandamus including whatever order is required.
8. The petitioner has made it clear in the foregoing paragraphs how the right to homosexuality is illegal; and he considers it necessary to present evidentially the publicity, rally slogan organised about the right to equality under the sponsorship of a non-government organization called Blue Diamond which is endeavoring to provide legal recognition to the right to homosexuality.
I have presented as evidence the news published on 2060.12.21 ( ) in the Gorkhapatra, a government newspaper, including the Kathmandu Post daily the Kantipur Daily, and the Annapurna Post daily about the Blue Diamond a non government organization having organised a program on 2060/12/20 on the right to equality by making chief guest the honorable Deputy Speaker of the Parliament and the news of homosexually rally marching with banner and play cards chanting slogan after the conclusion of that program. I have presented with this petition the photocopy of the news published on 2060/12/12 ( ) in the Gorkhapatra with the heading of "Homosexuals pour in Kathmandu.
9. This is human rights movement; in Kantipur with the heading of "Homosexuals in public hearing, in the Aannapurna Post with the heading of "Homosexuals come to road to make existence", in the Kathmandu Post with the heading of "Same Sex relationship, Loudest whisper in society with a play cards of "Sexuality is not a choice, eliminate sexual discrimination; and picture of the homosexuals.
Even though No. 4 of the chapter on Bestiality of the code places the homosexual marriage and homosexual physical relationship under the offense of the class of unnatural sexual intercourse and punishes with imprisonment up to one year or fine up to five thousand.
Some difficulties have absence due to vagueness of procedure. The petitioner thinks that the local administration remained silent spectator and failed to because of the procedural vagueness even when the homosexuals marched a rally in broad daylight in the capital city with play card, banner, demanding right to homosexuality and when the homosexuals poured this the public places such is open cross section road, restaurant, hotel of the capital. Even though the homosexual physical relationship is a criminal offense of grave nature prohibited by Nepal law. Which attacks the social rule and structure, since it is not incorporated in schedule 1 of the government cases Act 2049 there have arisen procedural difficulties to prevent the homosexual physical relationship that is considered by Nepalese laws an offense of unnatural sexual intercourse. Schedule 1 of the Government Cases Act, 2049 ( ) specifically enumerates the list of the criminal in cases which His Majesty's Government will be the prosecutor; schedule 2 enumerates the civil cases in which His Majesty's Government will be the plaintiff. The Act specifically states procedure that the presenter will be His Majesty's Government and the procedure of instituting the cases. However, since the offense liable to be held unnatural sexual intercourse under no 1 of the chapter Bestiality of the code 15 not entered into schedule 1 procedural difficulty have arisen for prevention of homosexual physical relationship that is the offense of unnatural sexual intercourse. Even though there is lack of procedural difficulties for prevention of homosexual physical relationship classified by Nepal law in to the class of unnatural sexual intercourse, since section 35 of the Government Cases Act 2049 ( ) holds the fallowing provision "His Majesty's Government may alter the cases enumerated in schedule 1 or 2 by publishing a notification in the Nepal Gazette", the petitioner claims that the offense under No 4 of the Chapter on Bestiality be incorporated in to schedule 1 of the Government Cases Act by publishing a notice in the Nepal Gazette.
Hence, as the Universal Declaration of Human Rights 1948 as well as any instrument out of the sixteen international instruments on human rights to which Nepal is a party and which have been ratified by Nepal has not granted legal validity to homosexual marriage and homosexual physical relationship and out of the said International Instrument, article 23 of the International Covenant on Civil and Political Right 1966 as well as no 1 and 2 of the chapter on Marriage of the Code, section 4 of the Marriage Registration Act 2028 ( ) provides for that human beings of opposite sex, that is to say, man and woman are required for a marriage and no 4 of the chapter on Bestiality has clearly banned unnatural sexual intercourse, it is clear that the homosexual physical relationship and homosexual marriage as well as publicity thereof and the Act of motivating it is illegal. Therefore, a writ of certiorari, mandamus including whatever order is required be issued in the name of respondent His Majesty's Government, Prime Minister and Cabinet Secretariat directing thereby to them to prevent the act of the publicity of homosexuality as well as that of motivating right to homosexuality and to take effective measure to prevent the offense under No 4 of the Chapter on Bestiality of the Code by entering into schedule 1 of the Government Cases Act, 2049 ( ) the offense of unnatural sex by publication of a notice in the Nepal Gazette Punishment to Section 35 of the Government Cases Act, 2049 ( )
11. Statement written on this petitioner are true. In the event that they turn out to be false I shall bear as per the law.
Achyut Prasat Kharel
License No. 2748
Drawn up on the Fourth day of the month of Asadh of the Year Two Thousand Sixty One. (June 18 2004)