The history too. Although international law and the national

The Right to equality of
LGBTQ people and judicial attitude in Nepal and India

 

 

 

 

 

 

 

 

 

 

 

Word
Count: 2248

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Submitted
by:

TC
13

Nisha
Bhandari

Hemansh
Tandon

 

 

 

 

 

 

Abstract

LGBTQ community, also
called the third genders in general have faced a lot of difficulties in the
recent years as well as in history too. Although international law and the
national laws of various nations have placed the people of LGBTI community on
equal footing as everyone, the people of LGBTI community throughout the world
have witnessed discrimination and violence in recent years. In many cases state
is the one that discriminates these people by making discriminatory laws and
passing such verdicts. While several other countries like United States of America,
Canada and a few European countries have given the members of LGBTQ their much
deserving and awaited impermissible bases for equal rights. Sexual orientation
and gender identity just like race , sex creed or religion are impermissible
bases for distinction. But in several countries in Asia their rights are
denied. In this research paper the disparity of the rights given to the LGBTI
people along with the right to equality of these people in context of India and
Nepal would be studied.

 

 

 

 

 

 

 

 

 

 

Objectives:

1.      To
know about the legal provisions regarding the LGBTI people in India and in
Nepal

2.      To
know about the verdicts given by the Supreme courts of both the countries in
relation to the right to equality of LGBTI people

3.      To
make a comparison between the rights as given by laws of each nation and
verdicts of both nations

 

Research Problem

1.      Are
the legal provisions and verdicts given by the Supreme Court of India and Nepal
able to promote the right to equality?

 

Methodology:

The
Doctrinal and analytical methods have been used to conduct this research where
only the secondary data is used.

Limitations:

1)
This research is only a study of legal provisions and verdicts. Hence, it
doesn’t include the practical societal scenario of availability of rights and
equality of LGBTI people.

2)
The study is only limited to the laws and verdicts of India and Nepal.

 

Introduction

HISTORY
OF THE WORD LGBTQ

LGBT
or GLBT is a term coined for lesbian, gay, bisexual and transgender. till the
1990s the termed used for this group was LGB. In the recent years two more
words are added to it which makes it LGBTQI.1
Apart from lesbian, gay, bisexual and transgender the term can also be used for
a heterosexual. LGBT is intended to create emphasis and awareness about a
diversity of sexuality and gender identity-based cultures.

Before
the sexual revolution of the 1960s, there was no common vocabulary for
non-heterosexuality; the closest such term, third gender, traces back to the
1860s but never gained wide acceptance in the United States.2
Many people started using alternative terms like queer, gay and lesbian. But
words like queer were started being used to insult the members of this
community.

CRITICISM OF THE WORD
LGBTQ

The
term LGBT got several criticisms like including the word ‘transgender’ in it.
They argue that transgender and transsexual causes are not the same as that of
lesbian, gay, and bisexual.  This
argument centers on the idea that transgenderism and transsexuality have to do
with gender identity, or a person’s understanding of being or not being a man
or a woman irrespective of their sexual orientation. 3LGB
issues be a matter of sexual orientation or attraction. These distinctions have
been made in the context of political action in which LGB goals, such as
same-sex marriage legislation and human rights work (which may not include
transgender and intersex people), may be perceived to differ from transgender
and transsexual goals. 4

HISTORY OF LGBTQ

LGBTQ
history dates to the first recorded instances of same-sex love and sexuality of
ancient civilizations, involving the history of lesbian, gay, bisexual,
transsexual, and transgender (LGBT) peoples and cultures around the world.5

The
first instances of LGBTQ are found in the history of ancient civilization.
There are several instances of same sex love in the civilization.

The
instances of LGBTQ are found in several civilizations like Greece, Rome, Pacific,
Chinese and even in the Indian Civilization.

CRITICISM

The
LGBTQ community has faced a lot of criticism not just in the recent times. Like
in the medieval times all the societies accepted the community, but they
weren’t back at criticizing them. The first instances of gay right movements
are found in the 1920s in Germany. During the 1920s and 1930s cities like
Berlin, German-Jewish sexologist Magnus Hirschfeld was one of the most notable
spokespeople for LGBT rights currently. The Nazi party came to power in 1933,
one of the party’s first acts was to burn down Hirschfeld’s institute of
sexology. 6

It
is argued that the numbers of gay people who perished in the Holocaust was
quite low in comparison to other Holocaust victims, and confined to Germany
itself, based on estimates that of 50,000 gay people who came before the
courts, between 5,000 and 15,000 ended up in concentration camps.

The
United States of America became very intolerant and hostile against the LGBTQ community.
But even though seeing the hostile nature of the government towards the
community many gay and lesbian didn’t hide their identity but instead proudly
revealed their gay identities.   A whole
new gay subculture was created where there were several gay bars and villages. 7Homosexuality
was considered a taboo in the United States during the 1950s. The legislature
of every state was rigid and against the homosexual behavior and passed anti
sodomy laws for the same. 

Not
even politically or economically the community was being oppressed but even in
the children weren’t given the rights to express their sexuality. In the boy
scouts of America gays and bisexuals weren’t allowed to enter the organization.
The reason given was that homosexuality is immoral and scouts were a symbol of
moral standards, values and required morally straight.  

CRITICISM IN RELIGION

Even
there are few people and religion which object the existence of the LGBTQ
community. For instance, in many Islamic countries sodomy is forbidden
according to the sharia law. Saudi Arabia, United Arab Emirates, Iran,
Mauritania, Nigeria, Sudan and Yemen sodomy carries death penalty.

In
Christianity there are several instances of criticism of the LGBTQ community.
The old testament prohibit man lie with the womankind. Several Christian
condemn same sex activity. The religions founded in India like Hinduism,
Buddhism, Jainism and Sikhism . They consider homosexuality as a western
influence ‘Once Dalai Lama stated that relationship between man and woman is
intended by nature. In 2005 the cleric of Akal takt said he is against and
condemns same sex marriage.8

 

International legal
provisions that mention about the right to equality of LGBTQ people

Article
2 of Universal Declaration of Human Rights(UDHR) has a provision of right
against discrimination on any grounds and article 7 has a provision of equality
of every human before law.

Article
2(1) of International Covenant on Civil and Political Rights (ICCPR) has
guaranteed the right to everyone irrespective of their sexual orientation and
article 26 has a provision of equality before law and right against any
discrimination.

Similarly,
article 2 of Covenant on Rights of Children(CRC) has a provision that mentions
the respect and ensure rights without discriminating on basis of sex.

 LAWS OF NEPAL

The
constitution of Nepal has guaranteed the right to citizenship of every citizen
of Nepal regardless of the gender in Article 10 and that too with gender
identity as in Article 12. Similarly, article 18 has guaranteed the right to
equality and equal protection of law regardless of their sex, without any
discrimination.

Similarly,
the Citizens Rights Act of 2012 B.S. (last revised 2072/11/13 B.S.)  in its section 3 and 4 have granted the right
to equality of every citizen before law and right against discrimination on
basis of sex.

However,
Marriage Registration Act, 2028 B.S. (last revised 2072/11/13 B.S.) section 4
has defined the condition in which marriage can be conducted between male and
female only.

Cases of Nepal

In
the case of Dillu Budiya Vs. Government of Nepal9,
the Supreme Court of Nepal has given a decision stating there cannot be a
condition of not providing a passport with an identity of third gender in a
context where the whole nation is moving forward to end discrimination and
ensure equality. But the impacts of having such changes in MRP while travelling
to different places should be looked upon.

Similarly,
in the case of Sunil Babu Panta Vs. Government of Nepal10,
which is also the first case concerning the rights of LGBTI people; the
petitioner claimed equality before law, guarantee of fundamental rights on
equal basis, issuance of order to opponents to grant citizenship certificate of
their own identity, repeal discriminatory laws and to de-criminalize and
de-stigmatize same sex marriage. Here the court has given a verdict that LGBTI
people are entitled to enjoy every right granted by the state without any
discrimination. The Court also passed the order to the government to introduce
new laws or amend existing ones to include the LGBTI people equally in every
aspect of nation.11

LAWS ON RIGHT TO EQUALITY
OF LGBTQ PEOPLE IN INDIA

The
history of LGBTQ members has been denied their rights for a very long time. The
mention of their rights being denied are dated back to the Mughal Sultanate.12 The Fatawa-e-Alamgiri
was a law which made same sex intercourse unlawful.13.
Even during the British Raj, they criminalized sexual activities which were
against the law of nature. This lead to formulation of section 377 of the
Indian Penal code.14  The Naz foundation vs Government of NCT of
Delhi is considered one the most historic and landmark judgments in India
regarding the laws on LGBTQ. The judgement regarded article 377 as
unconstitutional and direct violation of fundamental rights provided to us by
the Indian Constitution. 15According
to a previous ruling by the Indian Supreme Court, decisions of a high court on
the constitutionality of a law apply throughout India, and not just to the
territory of the state over which the high court in question has jurisdiction.16
But on 23rd February 2012 ministry of home affairs expressed
opposition on the decriminalization of homosexual activity stating that it is
immoral. Later the government changed its stand and said there is no legal
error in decriminalizing homosexual activities.17    The Supreme court later in 2013 set aside
the decision made by the Delhi high court and said that this issue must be
discussed and debated in the parliament . 18
In 2014 the supreme court of India dismissed the review petition by the Central
Government, NGO Naz
Foundation and several
others, against its 11 December verdict on Section 377 of IPC. 19In
explaining the ruling, the bench said: “While reading down Section 377,
the High Court overlooked that a minuscule fraction of the country’s population
constitutes lesbians, gays, bisexuals or transgender people, and in the more
than 150 years past, less than 200 persons have been prosecuted for committing
offence under Section 377, and this cannot be made a sound basis for declaring
that Section ultra vires Articles 14, 15 and 21.” 20
On 15 December 2015 Shashi Tharoor member of the Indian parliament introduced
the bill in house but was rejected by a vote of 71-24.

TRANSGENDERS

The transgenders in India were guaranteed their voting
rights 44 years after the country’s first general assembly election in the year
1994. The transgender in India didn’t even get safe medical facilities SRS.21
In 2014, the transgenders in India received some relive when the apex court of
India guaranteed them reservation in education and jobs and considered them as
socially and economically backward class. The court has also given them the
right of changing their gender with any sort of surgery. 22

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Analysis:

The international law has de-criminalized homosexuality
and has made various attempts to keep them on equal grounds as that of
everyone. However, in case of South Asia, it hasn’t been long since the states
have started sensitizing with this issue. In case of India, there has been ups
and downs and changes from time to time while trying to give the people of
LGBTQ community their right to equality. With recent changes, although the
Constitution of India, 1950 A.D. in article 15 has given a right to equality to
everyone, the Supreme Court has in recent times cited homosexuality as an
immoral act and criminalized it. On the other hand, in context of Nepal,
Supreme Court has expressly considered the Right to Equality of the people of
LGBTQ community. While most laws of Nepal have been revised to include the
right to equality of these people, some laws like the Marriage Registration Act
has still failed to do so.

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion

Hence in this way, although the constitutions of both
countries have granted the right to equality to the people of LGBTQ community;
there is still a gap to be filled in between the homosexuals and the
heterosexuals to ensure their right to equality. In the context of Nepal, some
laws that have not yet incorporated the LGBTQ community on an equal footing
needs to be revised and in context of India Supreme Court has totally
disregarded the right to equality of the people of LGBTQ community. Analyzing
the judicial attitude of both countries, conclusion can be drawn that
inclusion, there is a gap in between the law in book and law in action in
relation to the right to equality of people of LGBTQ community.

1 Acronyms,
Initialisms & Abbreviations Dictionary, Volume 1, Part 1. Gale Research Co., 1985, ISBN 978-0-8103-0683-7. Factsheet five, Issues 32–36, Mike Gunderloy, 1989

2 Swain, Keith
W. (21 June 2007). “Gay Pride Needs New Direction”. Denver Post. Retrieved 2008-07-05.

.3 Ross, E. Wayne
(2006). The Social Studies Curriculum: Purposes, Problems,
and Possibilities. SUNY Press. ISBN 0-7914-6909-3.

4 Swain, Keith
W. (21 June 2007). “Gay Pride Needs New Direction”. Denver Post. Retrieved 2008-07-05.

5 “Local Government Act 2003 (c. 26) –
Statute Law Database”. Statutelaw.gov.uk. 2011-05-27. Retrieved
2013-11-02

6 Lifton, Robert
(1986). “The Nazi Doctors: Medical Killing and the Psychology of
Genocide”. Basic Books

7Cuordileone, K. A. “‘Politics in an
Age of Anxiety’: Cold War Political Culture and the Crisis in American
Masculinity, 1949–1960″ The Journal of American History 87 (2)
(2000): 515–545

8 Homosexuality and Sikhism”. gaylaxymag.com. GayLaxy. Retrieved 4
July 2015.

9 Dillu Budiya Vs. Government of Nepal, Decision No. 9048, N.K.P 2070
B.S. (2013 A.D.)

10 Sunil Babu Panta Vs. Government of Nepal, N.K.P. 2064 B.S., writ no:
917

11 BIkash Thapa, “case of Sunil Babu Panta: An initiative to
recognize third gender in Nepal”, pp. 3-4

12 Kugle, Scott A
(1 Sep 2011). Sufis and Saints’ Bodies: Mysticism,
Corporeality, and Sacred Power in Islam. Chapter 4 – Note 62-63: Univ of North Carolina
Press. p. 309. ISBN 9780807872772. Retrieved 20 September 2017.

13A digest of the Moohummudan law pp. 1-3 with footnotes, Neil Baillie,
Smith Elder, London

14 Indian Penal Code

 

 

15Indian Penal code

 

16  Kusum Ingots v. Union of India, (2004) 6 SCC 254: “An order passed
on a writ petition questioning the constitutionality of a Parliamentary Act,
whether interim or final, keeping in view the provisions contained in Clause
(2) of Article 226 of the Constitution of India, will have effect throughout
the territory of India subject of course to the applicability of the Act.”

 

17 “Supreme Court pulls up Centre for
flip-flop on homosexuality”. The
Indian Express. 28 February 2012. Retrieved 9 September 2014.

18 Homosexuality is criminal offence: Supreme
Court”. Economic Times. 11 December 2013. Retrieved 11 December 2013

19 Supreme Court refuses overruling its
Verdict on Section 377 and Homosexuality”. IANS. Biharprabha News. Retrieved 28
January 2014

20 J Venkatesan
(11 December 2013). “Supreme Court sets aside Delhi HC
verdict decriminalising gay sex”. The Hindu. Chennai, India. Retrieved 2013-12-12.

21 Crystallising Queer Politics-The Naz
Foundation Case and Its Implications For India’s Transgender Communities” (PDF). NUJS Law Review. 2009

22 “Supreme Court’s Third Gender Status
to Transgenders is a landmark”. IANS. news.biharprabha.com. Retrieved 15 April
2014