Criminology and Penology Case: Sunil Babu Panta vs. Council of Ministers and others, Writ No. 917/064, Date of Decision: 2064/09/06 BS, NKP 2064 B.S, DN: 7958
Case: Public Interest Litigation
Plaintiff/Applicant:
Sunil Babu Pant, Executive Director of Blue Diamond Society
Meena Nepali, Vice Chairperson of MITINI Nepal
Sanjeev Gurung, Chairperson of Cruse AIDS Nepal
Manoranjan Kumar Vaidya, Executive Director of Parichaya Nepal
Defendant/Respondent:
Nepal Government, Office of the Prime Minister and Council of Ministers
Legislature-Parliament
Nepal Government, Ministry of Law, Justice and Parliamentary Affairs
Decision Number:7958
This is a landmark constitutional case which is related to the fundamental rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Nepal. The Supreme Court’s ruling in this case is very progressive, it acknowledged the third-gender identity and declared discrimination on the basis of sexual orientation and gender identity unconstitutional.
Facts of the Case:
Sunil Babu Pant and four organizations representing around 60000 LGBTI persons in Nepal filed the petition as a Public Interest Litigation. The petitioners contended that sexual and gender minorities faced discrimination, harassment, arbitrary arrests, violence, social exclusion and denial of equal protection of law. The petition also claimed that the Government had denied third gender people citizenship certificates that reflected their gender identity, denied them equal access to education, employment, health care, public services, and other constitutional rights. Current laws were reported to discriminate against LGBTI people and not provide adequate legal protection. The petitioners urged the Court to grant recognition to third gender, remove discriminatory laws and practices, and provide legislation for the rights of sexual and gender minorities, including legal recognition of same sex marriage.
Legal issues:
- Whether the writ petition could be allowed as a Public Interest Litigation.
- Whether sexual orientation and gender identity discrimination is a breach of the constitutional right to equality.
- If homosexuality and transgender identity are natural variations of human identity or mental disorders. The right to third gender status and full constitutional protection.
Different Courts Decisions:
Supreme Court:
The Supreme Court said that the petition was maintainable as a valid Public Interest Litigation as it was related to the protection of the fundamental rights of a marginalized community. The Court concluded that sexual orientation and gender identity are natural attributes of the human person and cannot be considered diseases, mental disorders or immoral behavior. All individuals have the right to express and determine their own gender identity and the third gender are natural persons with constitutional rights and legal protection equal to all other citizens.
The Court also found that discrimination on the basis of sexual orientation or gender identity is a violation of the constitutional rights of equality, dignity, liberty and non-discrimination guaranteed by the Interim Constitution. It recalled that the constitutional rights cannot be disregarded simply on the basis of religious beliefs, social customs, traditions or majority morality.
The Court cited international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Yogyakarta Principles, which it said should be used to interpret the constitution of Nepal.
The Supreme Court, therefore, issued the directive order to
- Accept and respect the third gender identity as a result of self-identification
- Reconsider and revise all laws and administrative practices that discriminate
- Promote equal enjoyment of constitutional and legal rights for LGBTI people
- Respect sexual and gender minorities and prevent discrimination against them
- Form an expert panel to examine the issue of same sex marriage and suggest suitable laws.
Principle Established:
- Public Interest Litigation can be used to safeguard the constitution rights of marginalized groups.
- Sexual orientation and gender identity are natural and intrinsic attributes of humans, not mental illness
- Third gender persons have the same constitutional rights, dignity, liberty and legal protection.
- Discrimination based on sexual orientation and gender identity is unconstitutional.
- Consensual sexual relations between adults are included in the right to privacy.
- The State has a positive constitutional obligation to remove discriminatory laws and to achieve substantive equality.
- International human rights treaties that Nepal has ratified and human rights principles accepted by the international community can be used to interpret the constitutional rights.
