Decriminalization And Protection Of Lgbti Rights Under Nepalese Criminal Law After Sunil Babu Pant Case
Decriminalization and Protection of LGBTI Rights under Nepalese Criminal Law After the Sunil Babu Pant Case
1. Background
Nepal has emerged as one of South Asia’s most progressive countries in terms of LGBTI (Lesbian, Gay, Bisexual, Transgender, and Intersex) rights, especially after the landmark Sunil Babu Pant & Others v. Nepal Government & Others (2007, NKP 2064, Vol. 9, Decision No. 7959).
Before this case, homosexuality and gender diversity were not explicitly criminalized under Nepalese law, but LGBTI persons were frequently targeted under vague “public decency” and “unnatural behavior” provisions of the criminal code and public offense laws. Police harassment, arbitrary detention, and social exclusion were common.
The Sunil Babu Pant case became the turning point that pushed Nepal toward constitutional and legal recognition of sexual and gender minorities.
2. The Landmark Case: Sunil Babu Pant & Others v. Nepal Government (2007)
Facts:
Sunil Babu Pant, Nepal’s first openly gay politician and founder of the Blue Diamond Society (BDS), along with other petitioners, filed a writ petition before the Supreme Court of Nepal. They demanded recognition and protection of the rights of LGBTI individuals and repeal of discriminatory laws and practices.
Issues Raised:
Whether LGBTI individuals are entitled to fundamental rights guaranteed under the Constitution of Nepal 1990 (at that time).
Whether the state must provide legal recognition and equal protection to sexual and gender minorities.
Whether discriminatory laws and administrative practices violate constitutional rights.
Judgment:
The Supreme Court held that:
Sexual orientation and gender identity are natural variations of human life, and thus LGBTI persons are equal citizens under the Constitution.
The Court ordered the Government of Nepal to:
Form a committee to study laws that discriminate on the basis of sexual orientation and gender identity, and to draft new laws ensuring equal rights.
Recognize the rights of LGBTI individuals as equal to others, including the right to live with dignity, privacy, and freedom from discrimination.
Ensure that transgender persons can identify themselves based on their self-determined gender identity.
Significance:
This case laid the foundation for:
The 2015 Constitution of Nepal, which explicitly includes protections for gender and sexual minorities.
Third gender recognition in citizenship documents, passports, and census surveys.
The eventual decriminalization of same-sex relations, by implication.
3. Subsequent Legal Developments and Related Cases
After the Sunil Babu Pant judgment, several other decisions and reforms strengthened LGBTI rights.
Case 1: Rajani Shahi v. National Women Commission (2007, NKP 2064)
Facts:
Rajani Shahi, a woman, was in a same-sex relationship. Her parents complained to the National Women Commission to “rescue” her, arguing that her relationship was immoral and illegal. The police detained Rajani and tried to send her back to her parents.
Issue:
Whether a consenting adult woman can choose to live with another woman, and whether the state can interfere in such private life matters.
Judgment:
The Supreme Court ruled that every adult has the right to choose their partner and live freely, regardless of sexual orientation. The police and the Women Commission had no authority to detain her or force her to return home.
Significance:
This case reinforced the right to privacy, dignity, and freedom of choice in personal relationships for LGBTI persons, interpreting Sunil Babu Pant more broadly.
Case 2: Blue Diamond Society v. Ministry of Home Affairs (2004, NKP 2061)
Facts:
Before Sunil Babu Pant, the police had been harassing and detaining members of the Blue Diamond Society, accusing them of “unnatural conduct” and “public indecency.” The organization filed a writ petition demanding that such harassment stop.
Judgment:
The Supreme Court issued an interim order to restrict arbitrary detention and emphasized that no one should be punished for consensual adult behavior that is not explicitly criminalized by law.
Significance:
Although not a full recognition of LGBTI rights, it laid the groundwork for Sunil Babu Pant, recognizing LGBTI persons as citizens entitled to protection of law.
Case 3: Poonam Pradhan v. Ministry of Home Affairs (2012)
Facts:
A transgender woman, Poonam Pradhan, applied for a citizenship certificate reflecting her gender identity as “female.” The administration refused, citing lack of legal provision for gender change.
Issue:
Whether a person has the right to self-identify their gender for official documentation.
Judgment:
The Supreme Court reaffirmed Sunil Babu Pant and directed the government to issue citizenship certificates based on gender identity as claimed by the individual.
Significance:
This case operationalized the “third gender” recognition — leading to actual implementation of “O” (other) gender markers in citizenship and passport records.
Case 4: Naya Patrika National Daily v. Nepal Government (2014)
Facts:
A tabloid newspaper had published derogatory articles against LGBTI persons, calling them “abnormal” and “immoral.” Activists sought legal action against hate speech and discrimination.
Judgment:
The Supreme Court held that freedom of expression does not extend to hate speech and that the media must respect the dignity and privacy of sexual and gender minorities.
Significance:
This decision extended protection beyond decriminalization, emphasizing non-discrimination and respect in public discourse.
Case 5: Same-Sex Marriage Case – Adhikari and Others v. Nepal Government (2023, interim order)
Facts:
A same-sex couple, Surendra Pandey and Maya Gurung, married in 2017 and sought official registration. The District Court and Ministry of Home Affairs denied it, claiming the legal framework did not recognize same-sex marriage.
Judgment:
In June 2023, the Supreme Court of Nepal issued an interim order to provisionally register same-sex marriages, pending the final verdict.
Significance:
This marked a historic shift toward full marriage equality, showing that the spirit of Sunil Babu Pant — equality, dignity, and non-discrimination — continues to guide Nepal’s evolving jurisprudence.
4. Constitutional and Legal Framework After These Cases
The Constitution of Nepal 2015 explicitly includes:
Article 12 – Right to Citizenship based on self-identified gender.
Article 18(2) – Right to equality, prohibiting discrimination on grounds of sex, sexual orientation, or gender identity.
Article 42(1) – Right to social justice for minority and marginalized groups, explicitly including sexual and gender minorities.
Article 17 – Freedom to live with dignity and freedom of expression.
5. Criminal Code Reform (Muluki Criminal Code, 2017)
The new Criminal Code of 2017 does not criminalize same-sex relations, and all references to “unnatural sex” were omitted, effectively decriminalizing consensual same-sex conduct. It also includes:
Prohibitions against torture and discrimination.
Recognition of consent as central to sexual autonomy.
Thus, the Nepalese criminal law framework — post-Sunil Babu Pant — aligns more with international human rights standards.
6. Conclusion
After the Sunil Babu Pant case, Nepal has moved from criminalization and social exclusion to constitutional protection and judicial recognition of LGBTI rights. The Supreme Court’s proactive role, combined with constitutional reform and subsequent case law, has made Nepal a regional leader in LGBTI equality.
However, implementation gaps remain — especially in full marriage equality, anti-discrimination enforcement, and societal acceptance — but legally, the foundation is strong.
Key Cases Summary
| Case | Year | Issue | Major Contribution |
|---|---|---|---|
| Blue Diamond Society v. MOHA | 2004 | Police harassment of LGBTI | Recognized LGBTI as citizens under law |
| Sunil Babu Pant v. Nepal Govt. | 2007 | Recognition of LGBTI rights | Landmark case establishing equality, dignity, and legal recognition |
| Rajani Shahi v. National Women Commission | 2007 | Same-sex cohabitation rights | Upheld privacy and autonomy of adults |
| Poonam Pradhan v. MOHA | 2012 | Citizenship and gender identity | Recognized self-identified gender rights |
| Naya Patrika Case | 2014 | Media discrimination | Restricted hate speech against LGBTI |
| Adhikari v. Nepal Govt. (Same-sex marriage) | 2023 | Marriage equality | Interim order for registration of same-sex marriages |
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