A Petition Presented to the Supreme Court Subject: Request for postponement of hearing Advocate Achyut Prasad Kharel, resident

of Kavrepalanchok District, Kharelthok VDC, Ward No. 4, Kharelthok . Petitioner Versus Including District Administration Office, Kathmandu ... 1 Case: Certiorari/Mandamus I, the petitioner, present the following petition, together with Rs. 5/- as petition fee. 1. I, the petitioner, am party to the 2061 BS (2004) case with writ number 3736, whose hearing was scheduled for today, 2064 Baisakh 21 (4 May 2007). However, I, the petitioner, must sit for my masters' level (LLM) examinations from 1:00 pm this afternoon. Therefore, I request for the postponement of today's hearing. 2. The details provided here are accurate. If there are discrepancies, I shall endure, understand in accordance with the law. Date: 21st day of the month of Baisakh, 2064 BS (corresponding to 4 May 2007), Friday Signed: Achyut Prasad Kharel, Advocate

[BDS 2004 CASE - working translation] 1

A Petition Presented to the Supreme Court

2061 BS (2004), Writ No. 3736 Subject: Regarding permission for debate, advocacy through involvement in the writ petition trial Sunil Pant, 32, Resident of Kathmandu Metropolitan City, Ward No. 4, Baluwatar, with authority from, and on behalf of, Blue Diamond Society, Kathmandu Metropolitan City, Ward No. 2, Lazimpat, Khorsanitar, as well as in exercise of his own right .... 1 Versus Advocate Achyut Prasad Kharel, resident of Kavrepalanchok District, Kharelthok VDC, Ward No. 4, Kharelthok ... 1 Case: Request for issuance of necessary order of command, including certiorari and mandamus, in accordance with the Constitution of the Kingdom of Nepal, 2047 (1990), Article 88(2). We present the following petition, together with the required petition fee. 1. Advocate Achyut Prasad Kharel, resident of Kavrepalanchok District, Kharelthok VDC, Ward No. 4, has presented a petition, treating bodies including His Majesty's Government, Office of the Prime Minister and Council of Ministers as respondents, citing that pursuant to Numbers 1 and 2 of the Chapter on Marriage, and Number 4 of the Chapter on Bestiality in the Muluki Ain, 2020 (1963), Section 4 of the Marriage Registration Act, 2028 (1971) and Article 88(2) of the Constitution of the Kingdom of Nepal, the government has banned homosexual behavior; regardless of such a ban, acts to encourage homosexuality are being carried out; His Majesty's Government and concerned authorities have remained silent; this organization called the Blue Diamond Society has been organizing various programs relating to the right to homosexuality. In the petition, he stated that the law had been violated and requested that necessary order be issued for the inclusion of Number 4 on the Bestiality in Schedule 1 of the Government Cases Act, 2049 (1992), in order to control such acts. He includes in the petition the name of the Blue Diamond Society, and that matter is of concern to this organization; it is a case of public concern. Therefore, I am presenting this petition to request permission to carry out debate and advocacy by appointing a legal practitioner on behalf of the organization and participate in that case. 2. With this application, I have submitted the following written documents: (a) Attested copy of the Blue Diamond Society Constitution (b) Attested copy of the Blue Diamond Society Certificate (c) Decision of Management Committee Meeting

[BDS 2004 CASE - working translation] 2

3. The details mentioned above are true. If proved false, I shall endure, understand in accordance with the law. Signed Petitioner Sunil Pant Chairman Blue Diamond Society Date: 27th day of the month of Baisakh, 2062 BS (corresponding to 10 May 2005), Tuesday

[BDS 2004 CASE - working translation] 3

Meeting of the Executive Committee 2061 Bhadra 11 (27 August 2004) The 20th meeting of the Executive Committee, held on 2061 Bhadra 11 (27 August 2004) and chaired by Mr. Sunil Babu Pant, held the following discussion and made the following decision: Members Present: 1. Sunil Babu Pant 2. Sangram Singh Hamal 3. Bishnu Raj Pant 4. Suben Dhakal 5. Rabindra Silwal 6. Suman Maharjan 7. Rajesh Lama 8. Sanjiv Gurung 9. Chandra Prasad Nepal 10. Madan Rai Chamling 11. Sunil Sundas Discussion and Decisions: 1) BDS' serious attention has been drawn towards the writ petition (Writ No. 3739) filed at the Supreme Court on 2061/3/25 (9 July 2004) to "to ban the campaigning for same sex (homosexual) relationships and the campaign for the right to homosexuality and activities that promote the right to homosexuality." BDS is Nepal's only organization devoted for the sexual health and rights of the homosexual community. The matter mentioned in this writ will directly affect this organization. Therefore, it has been realized that our organization should also be able to participate in this case. Today's board meeting decided to provide full authority to Mr. Sunil Babu Pant, Chairman of this organization, in order to take appropriate steps for this task. 2) It was decided to also provide full authority to Mr. Sunil Pant in relation to the programs to be conducted by BDS in the coming year, new programs to be launched and for the agreement to be done with usual donors, FHI and PSI. 3) The meeting was informed about the resignation of a BDS staff member, Mr. Chandra Prasad Nepal. He has been replaced by Mr. Sudan Rai, who will be paid for by PSI. The post was advertised; candidates were interviewed and he was appointed Condom Distribution Officer. 4) The meeting was informed that the PSI and FHI programs continued to run smoothly. 5) The Chairman closed the meeting after summarizing the points raised by members during today's meeting. Signed
[BDS 2004 CASE - working translation] 4

Chairman Vice-Chairman Treasurer Secretary Member Member Member Member Member Member Member

Signed Signed Signed Signed Signed Signed Signed Signed Signed Signed Signed

ARC INTERNATIONAL 1-277 Clarence St, Ottawa, ON, Canada, K1N 5R2 Ph./Tel: 1-613-321-9826 arc@arc-international.net August 5, 2004 The Hon. Purna Bahadur Khadka Minister of Home Affairs Ministry of Home Affairs, Singha Durbar, Kathmandu Nepal Dear Minister: We are writing to express our concern over the proposed ban on activities by the Nepalese Supreme Court, including advocacy, by or on behalf of lesbians, gay men, transgender people, and men who have sex with men in Nepal. The international human rights community is deeply troubled by the fact that this threatened ban is coming forward at the same time as repeated allegations of police misconduct and violence against these communities. We strongly encourage your Ministry to respond to the Court's recent writ by affirming that the basic freedoms of association, expression, and assembly must be enjoyed by all without discrimination. We are hopeful that the Nepalese government does not want to send a message to the international community that it condones activity which silences those who document and defend against human rights abuses. The Blue Diamond Society has gained international respect through its outreach around issues of HIV/AIDS and other health concerns to communities of men who have sex with men and metis (transgender persons). It has also documented instances of police violence against these communities, called for official investigations, and raised public awareness about these abuses. It is of grave concern to us, that these activities have frequently subjected the Blue Diamond Society and its constituencies to violence and harassment. Most recently, we are aware that a demonstration organized by the Society on July 5 to protest recent alleged police abuses against metis was disrupted by police while marching peacefully from the Bhadrakhali Temple toward Singha Durbar to present a petition to the Prime Minister. Police reportedly dispersed the group violently, beating several of the protesters. Article 5 of the U.N. General Assembly's "Declaration on Human Rights Defenders" affirms that "everyone has the right, individually and in association with others, to meet or assemble peacefully," and "to form, join, and participate in non-governmental organizations, associations or groups." Article 7 affirms the right "to develop and to discuss new human rights ideas and principles and to advocate for their acceptance." Indeed, the Special Representative of the U.N.
[BDS 2004 CASE - working translation] 5 Sa. Su. Branch 2061/5/10 (26 August 2004) Your Honor In relation to the sex law dealt with by the Supreme Court, ... Seems more related to Ministry of Law. Signed 2061/5/10 (26 August 2004)

Secretary General on Human Rights Defenders has called attention to the "special importance" of the work of "human rights groups and those who are active on issues of sexuality, especially sexual orientation. These groups are often very vulnerable to prejudice, to marginalization and to public repudiation, not only by state forces but by other social actors." ARC International urges you to: abide by Nepal's international obligations and affirm to the Supreme Court that there is no cause for banning "open homosexual activities" under Nepalese law. Ensure a full and impartial investigation of police abuse against metis, men who have sex with men, and members of other groups, reported by the Blue Diamond Society or other civil society agents. discipline any individuals found responsible for wrongdoing as a result, and bring them to justice if they are discovered to have carried out illegal actions. support the elimination of grounds for ambiguity in Nepalese law through the repeal of the criminalization of "unnatural sex" in paragraphs 1 and 4 of Part 14, Chapter 16 of Nepal's Civil Code of 1963 (Muluki Ain). Thank you for your attention. We look forward to your reply. Sincerely, Kim Vance and John Fisher Co-Directors, ARC International cc: Ministry of Law, Justice, and Parliamentary Affairs, Kathmandu, Nepal Mr. William H. Baxter, Honorary Royal Nepalese Consul General for Toronto, Canada

[BDS 2004 CASE - working translation] 6

His Majesty's Government Ministry for Law, Justice and Parliamentary Affairs Tel: 4-220987, 4-226230, 4-224241, 4-222534, 4-224633, 4-220672, 4-223727 Fax: 4-220684 Singha Durbar, Kathmandu, Nepal. Date: 2061/5/23 (8 September 2004) Letter Number: Justice Admin 46, Dispatch Number: 76 Subject: Letter sent. The Supreme Court, Ram Shah Path. An original copy of the letter from Co-Directors of ARC International, Kim Vance and John Fisher, addressed to the Hon. Minster of Home Affairs and dated 5 August 2004 was received from the Ministry of Home Affairs, together with a letter dated 2061/5/18 (3 September 2004), Dispatch Number 825, for required information. As the letter concerns the Supreme Court, please be informed that it is attached herewith for necessary action, as per the orders received. Signed (Puskar Raj Nepal) Section Officer Cc: Ministry of Home Affairs Singha Durbar.

[BDS 2004 CASE - working translation] 7

Written Response Presented to the Supreme Court Care of: The Office of the Attorney General, Ram Shah Path. Writ No. 3736 of 2061 BS (2004) Subject: Request for annulment of writ petition His Majesty's Government, Ministry of Home Affairs, District Administration Office, Kathmandu ...... Written Response Presenter Versus Achyut Prasad Kharel . .... Respondent/Writ Petitioner Case: Including Certiorari, Mandamus The respondent writ petitioner has also involved this Office in his writ petition. On 2061/4/6 (21 July 2004), a circular was received, with an order for a written response to be sent through the Office of the Attorney General, within 15 days, not including the time for journey, explaining what had happened in this connection and why an order, as per the petitioner's demand, should not be issued. Due to the Office being busy with its work, we were not able to provide a written response on time. With this letter, I include the deadline postponement request letter and provide the following details as my written response: 1. The details of the writ petition have not been reviewed. 2. I request for the annulment of the writ petition for the following reasons: (a) In order for His Majesty's Government to take action on anyone, law is required. Since the State has not framed any law to take action against the homosexual persons, no action could be taken. (b) Unlike what the writ petitioner mentions, there is no clear legal provision to take action against homosexual persons under Number 4 of Bestiality. If that is to be interpreted as a legal provision, action can be taken only when someone is caught having unnatural sex. 3. In cases where His Majesty's Government is plaintiff, the Government Cases Act, 2049 (1992) has made a separate mechanism for investigation in order to take action; while it should fall under the jurisdiction of such a mechanism, even this Office has been made respondent in the writ petition. The writ petition annulment is worthy of annulment; I request for its annulment. 4. A separate written response will be received from the other individuals, who have been made respondents; therefore, nothing is mentioned here about them. 5. I request that the issue raised by the Public Prosecutor, during the course of debate, be considered as an inseparable part of this written response. Written Response Presenter Baman Prasad Neupane Chief District Officer Date: 32nd day of the month of Shrawan, 2061 BS (corresponding to 16 August 2004), Monday
[BDS 2004 CASE - working translation] 8

A Petition Presented to the Supreme Court Care of: The Office of the Attorney General, Ram Shah Path. Writ No. 3736 of 2061 BS (2004) Subject: Request for postponement of deadline His Majesty's Government, Ministry of Home Affairs, District Administration Office, Kathmandu ....... Petitioner Versus Achyut Prasad Kharel . ..... Respondent Case: Including Certiorari, Mandamus The respondent writ petitioner has also involved the District Administration Office as respondent in his writ presented to the Competent Supreme Court. On 2061/4/6 (21 July 2004), a circular was received, with an order to provide a written response. The given deadline has been missed due to the Office being busy with other work. Therefore, as per Rule 42(a) of the Supreme Court Regulations, 2049 (1992), I request for the postponement of the deadline by 35 days and that the written response sent with this petition be registered. Petitioner (Baman Prasad Neupane) Chief District Officer Date: 32nd day of the month of Shrawan, 2061 BS (corresponding to 16 August 2004), Monday

[BDS 2004 CASE - working translation] 9

Written Response Presented to the Supreme Court Care of: The Office of the Attorney General, Ram Shah Path. Writ No. 3736 of 2061 BS (2004) Subject: Request for annulment of writ petition His Majesty's Government, Ministry of Home Affairs ----------------- Written Response Presenter Versus Achyut Prasad Kharel -------------------------------------------------------- Respondent/Writ Petitioner Case: Including Certiorari, Mandamus The respondent writ petitioner has also involved this Ministry in his writ petition. On 2061/4/11 (26 July 2004), a circular was received, with an order for a written response to be sent through the Office of the Attorney General, within 15 days, not including the time for journey, explaining what had happened in this connection and why an order, as per the petitioner's demand, should not be issued. Due to the Office being busy with its work, we were not able to provide a written response on time. With this letter, I include the deadline postponement request letter and provide the following details as my written response: 1. The details of the writ petition have not been reviewed. 2. I request for the annulment of the writ petition for the following reasons: (a) In order for His Majesty's Government to take action on anyone, law is required. Since the State has not framed any law to take action against the homosexual persons, no action could be taken. (b) Unlike what the writ petitioner mentions, there is no clear legal provision to take action against homosexual persons under Number 4 of Bestiality. If that is to be interpreted as a legal provision, action can be taken only when someone is caught having unnatural sex. 3. In cases where His Majesty's Government is plaintiff, the Government Cases Act, 2049 (1992) has made a separate mechanism for investigation in order to take action; while it should fall under the jurisdiction of such a mechanism, even this Ministry has been made respondent in the writ petition. The writ petition annulment is worthy of annulment; I request for its annulment. 4. A separate written response will be received from the other individuals, who have been made respondents; therefore, nothing is mentioned here about them. 5. I request that the issue raised by the Public Prosecutor, during the course of debate, be considered as an inseparable part of this written response. Written Response Presenter (Ananta Raj Pande) Secretary Date: 29th day of the month of Shrawan, 2061 BS (corresponding to 13 August 2004)
[BDS 2004 CASE - working translation] 10

A Petition Presented to the Supreme Court Care of: The Office of the Attorney General, Ram Shah Path. Writ No. 3736 of 2061 BS (2004) Subject: Request for postponement of deadline His Majesty's Government, Ministry of Home Affairs --------------------------------------- Petitioner Versus Achyut Prasad Kharel -------------------------------------------------------------------------- Respondent Case: Including Certiorari, Mandamus The respondent writ petitioner has also involved this Ministry as respondent in his writ presented to the Competent Court. On 2061/4/11 (26 July 2004), a circular was received, with an order to provide a written response. The given deadline has been missed due to the Ministry being busy with other work. Therefore, as per Rule 42(a) of the Supreme Court Regulations, 2049 (1992), I request for the postponement of the deadline by 35 days and that the written response sent with this petition be registered. Petitioner Written Response Presenter (Ananta Raj Pande) Secretary Date: 29th day of the month of Shrawan, 2061 BS (corresponding to 13 August 2004)

[BDS 2004 CASE - working translation] 11

Written Response Presented to the Supreme Court Care of: The Office of the Attorney General, Ram Shah Path. Writ No. 3736 of 2061 BS (2004) Subject: Including Certiorari, Mandamus Secretary Mahendra Nath Aryal on behalf of His Majesty's Government, Office of the Prime Minister and Council of Ministers ----------------------------------------- Written Response Presenter Versus Advocate Achyut Prasad Kharel, resident of Kavrepalanchok District, Kharelthok VDC, Ward No. 4 --------------------------------------------------------------------------- Respondent/Writ Petitioner In his writ petition presented to the Competent Court, the respondent writ petitioner, Mr. Achyut Prasad Kharel, has also involved His Majesty's Government, Office of the Prime Minister and Council of Ministers in his writ petition concerning Writ No. 3776 of 2061 BS (2004). On 2061/4/11 (26 July 2004), a circular was received, with an order for a written response to be sent through the Office of the Attorney General, within 15 days, not including the time for journey, explaining what had happened in this connection and why an order, as per the petitioner's demand, should not be issued. I present my written response as follows within the stipulated deadline: 1. The respondent writ petitioner's demands are clear from the writ petition itself, so there is no need for them to be reviewed here. 2. What activities and proceedings of this Office have violated which of his particular rights? Without providing a clear justification to establish a basis and reason, the respondent writ petitioner has also made this Office an opposition party. The writ petition annulment is worthy of annulment. I request for its annulment. 3. A written response will be received from the other concerned agencies, which have been made an opposition party, in connection with the claims made in the writ petition. 4. I request that the arguments and claims made by the Public Prosecutor, present on behalf of this Office, in the course of the hearing of the case, be considered as an inseparable part of this written response. I request the Competent Court to annul the writ petition on the basis of the points and proofs mentioned above. Written Response Presenter (Mahendra Nath Aryal) Secretary, His Majesty's Government Date: 20th day of the month of Shrawan, 2061 BS (corresponding to 4 August 2004), Wednesday
[BDS 2004 CASE - working translation] 12

Written Response Presented to the Supreme Court Care of: The Office of the Attorney General of the Kingdom of Nepal, Kathmandu. Subject: Request for annulment of Writ No. 3736 of 2061 BS (2004)

Secretary Dr. Kul Ratna Bhurtel on behalf of His Majesty's Government, Ministry of Law, Justice and Parliamentary Affairs Versus Advocate Achyut Prasad Kharel, resident of Kavrepalanchok District, Kharelthok VDC, Ward No. 4

Written Response Presenter Respondent/Writ Petitioner

In his writ petition filed in relation to Writ No. 3776 of 2061 BS (2004), the respondent writ petitioner has also involved this Ministry. On 2061/4/11 (26 July 2004), a circular was received, with an order from the Competent Supreme Court for a written response to be sent, within 15 days, not including the time for journey, explaining what had happened in this connection and why an order, as per the petitioner's demand, should not be issued. I present this written response, remaining focused on the matters relating to this Ministry, within the stipulated deadline: 1. In his writ petition the respondent writ petitioner has filed, he claims that the Universal Declaration of Human Rights, as well as 16 international human rights instruments, which Nepal has ratified, have not provided legitimacy to same sex marriage and same sex (homosexual) relationships ; that Numbers 1, 2 of the Chapter on Marriage in Naya Muluki Ain, 2020 (1963) and Section 4 of the Marriage Registration Act, 2028 (1971) provide that in order for a marriage to occur, members of the opposite sex, i.e. man and woman, are required; that Number 4 of the Chapter on Bestiality in the Muluki Ain bans unnatural sexual intercourse. The writ petitioner, therefore, requested for the issuance of necessary order of command, including certiorari and mandamus, to ban same sex (homosexual) relationships and same sex marriage, their publicity and any activity that promoted such acts, and to include offences relating to unnatural sexual intercourse, under Number 4 of the Chapter on Bestiality in Naya Muluki Ain, 2020 (1963), in Schedule 1 of the Government Cases Act, 2049 (1992), in order to take effective steps for the prevention of such an offence. This writ is worthy of annulment on the following basis: (a) First of all, apart from including this Ministry in the respondent/opposition column, the petitioner does not seem to mention anywhere in the main statement of his petition how the activities and proceedings of this Ministry have hurt the respondent's (his) rights. (b) There is a provision to mention cases of serious nature in Schedule 1 of the Government Cases Act, 2049 (1992), and in relation to the offences under Number 4 of Bestiality in the Muluki Ain, action can be taken according to the prevailing law. Therefore, the logic that exclusion from Schedule 1 has created an obstruction is not valid. 2. A written response will be presented by the other parties, which have been made respondents/opposition. Therefore, there is no need for this Ministry to speak on their behalf.
[BDS 2004 CASE - working translation] 13

3. Since this case will be presented before a court bench, I request that the debate, advocacy and defense presented by the Public Prosecutor be considered as an inseparable part of this case. 4. Therefore, on the above basis, I request for the annulment of the writ. 5. The details provided above are correct. Written Response Presenter (Dr. Kul Ratna Bhurtel) Secretary Ministry of Law, Justice and Parliamentary Affairs Date: 25th day of the month of Saun, 2061 BS (corresponding to 9 August 2004), Monday

[BDS 2004 CASE - working translation] 14

Supreme Court One Judge Bench Hon. Judge Mr. Ram Prasad Shrestha Order 2061 BS (2004), Writ No. 3776 Subject: Including Certiorari, Mandamus Achyut Prasad Kharel ... Petitioner Versus Including Ministry of Home Affairs . Respondent What has happened in this connection? Why should an order, as per the petitioner's demand, not be issued? Please send a written response, together with relevant documents, through the Office of the Attorney General, within 15 days of receiving this order, not including the time for journey. A copy of the writ petitioner's petition is included herewith. The respective respondents should provide information, with a carbon copy to the Office of the Attorney General. After receiving a written response, or after crossing the deadline, please present as per the rules. Signed Judge Date: 28th day of the month of Asar, 2061 BS (corresponding to 12 July 2004), Monday

[BDS 2004 CASE - working translation] 15

Supreme Court (Writ Section) Comments and Orders Subject: Request for issuance of order of command, including certiorari, mandamus, quo warranto and prohibition. Achyut Prasad Kharel ... Petitioner Versus Including His Majesty's Government, Ministry of Home Affairs . Respondent Since this petition is darpith1 and was registered after the darpith order was void/rejected, please deposit Rs. 500/- (five hundred rupees) at the Supreme Court Accounts Section [in order to be forwarded to?] Nepal Rastra Bank.2 Please register the petition at the Accounts Section and present it to one judge bench in accordance with the rules. Signed 2061/3/25 (9 July 2004)

1 2

endorsement as of rejection, written rejection notice This line is very confusing

[BDS 2004 CASE - working translation] 16

Petition No. 8435 061/3/10/5 (24 June 2004, Thursday) From the Supreme Court Register the petition. Present to one judge bench in accordance with the rules. Signed 061/3/10 (24 June 2004) Writ No. 3736 Date: 061/3/25/6 (9 July 2004, Friday) A Petition Presented to the Supreme Court Subject: Request for Writ Petition to be registered through annulment of the Registrar's darpith order. Advocate Achyut Prasad Kharel, resident of Kavrepalanchok District, Kharelthok VDC, Ward No. 4 ---------------------------------------------------------------------------Versus His Majesty's Government, Office of the Prime Minister and Council of Ministers, Singha Durbar, Kathmandu -------------------------------------------------- 1 Respondents His Majesty's Government, Ministry of Law, Justice and Parliamentary Affairs, Singha Durbar, Kathmandu -------------------------------------------------------------- 1 District Administration Office, Kathmandu -------------------------------------------- 1 I, the petitioner, include herewith Rs. 5/- as petition fee, and make the following petition: 1. In relation to this petitioner's petition requesting for the issuance of necessary order of command, including certiorari and mandamus, in accordance with the Constitution of the Kingdom of Nepal, 2047 (1990), Article 88(2), the darpith order issued by Shree Prasad Pandit, Registrar of the Supreme Court, was illegal; it was a result of twisting and misinterpreting the details of the writ petitioner. The petitioner had clearly mentioned in his petition that Nepal's law has prohibited homosexual activities; and that the campaigning in favor of same sex (homosexual) relationships, and activities encouraging homosexual physical relationships are illegal. The petitioner has also taken a clear legal basis regarding how homosexual physical relationships are illegal in Nepal's context. 2. The petitioner's main claim is that same sex (homosexual) relationships fall under unnatural sexual intercourse under Number 4 of Bestiality of Naya Muluki Ain, 2020 (1963). An unnatural sexual relationship between two people is an animal act of a human. Number 4 of Bestiality of Naya Muluki Ain, 2020 (1963) bans unnatural sexual intercourse. Therefore, it is the petitioner's stand that same sex (homosexual) relationships are an offence under that Number. The applicant clearly mentioned how same sex (homosexual) relationships are illegal, citing clear and specific provisions mentioned in the law. However, in his darpith
[BDS 2004 CASE - working translation] 17

Petitioner

order, the Registrar ignored the clear legal basis, presented by the petitioner, and maintained that the petitioner could not specify how same sex marriage and same sex (homosexual) relationships violated the law. But the petitioner has maintained that Numbers 1 and 2 of [the Chapter on] Marriage in Naya Muluki Ain, 2020 (1963), Section 4 of the Marriage Registration Act, 2028 (1971) and Article 23 of the International Covenant on Civil and Political Rights, 1966, which Nepal has ratified, provide that in order for a marriage to occur, members of the opposite sex, i.e. man and woman, are required. From that provision, it comes to be revealed that same sex marriage is banned. Number 4 of Bestiality in Naya Muluki Ain, 2020 (1963) bans in clear terms unnatural sexual intercourse. Therefore, the petitioner claims that same sex (homosexual) relationships are a criminal offence under that Number. The petitioner came to register this writ petition with a clear legal basis, but the Registrar issued a darpith order, maintaining that the petitioner could not establish under which law same sex marriage and same sex (homosexual) relationships were illegal. Therefore, it is clear that the clear legal basis taken by the petitioner was ignored and a contrary illegal order was issued. 3. On the one hand, the petitioner has taken a clear legal basis to establish how same sex (homosexual) relationships are illegal in the context of Nepal. On the other, the Blue Diamond Society has been established with the main objectives to campaign for such an illegal activity, to provide recognition to the right to homosexuality and to attract people towards homosexual intercourse. Same sex (homosexual) relationships are a character demerit in a human, and that particular organization carries out the campaigning for same sex (homosexual) relationships and same sex marriage, linking these issues to human rights and encouraging, as an institution, [people] to become homosexual. It organized a program on the right to homosexuality, with someone holding a position as glorious as Deputy Speaker of Parliament, invited as chief guest; after the conclusion of that event, homosexual persons holding placards and banners, took to the busy streets of the capital, rallying and sloganeering, and campaigning for the right to homosexuality. While Nepal's law considers same sex (homosexual) relationships illegal, it is clear that activities to promote them and the campaign organized by that NGO are illegal. In the Nepali capital, Kathmandu, the Blue Diamond Society has been established to promote the right to homosexuality considered illegal by Nepal's law. While that NGO has been involved as an institution to promote illegal activities, His Majesty's Government, including Local Administration, remain silent spectators. Against such context, it is clear that the campaigning for such an illegal activity has become a matter of public concern. In connection with that petition requesting a ban on such illegal activities, with bodies including His Majesty's Government, the Office of the Prime Minister and Council of Ministers, named as respondents/opposition, and requesting for the issuance of necessary order of command, including certiorari and mandamus in their names, the darpith order issued by the Registrar mentions that it is not a matter of public concern. It is clear that there is a serious legal error in the Registrar's darpith order. 4. When the Registrar issued the darpith order, the petition seems to have been treated as one that had been brought by the petitioner to register on a hypothetical basis; this is mentioned in the darpith order. But, in reality, the petitioner has clarified in the text of the writ petition, on a legal basis, how the right to homosexuality is illegal. The petitioner also considered it important to provide evidence of the campaigning, sloganeering and rallying, organized by the NGO named the Blue Diamond Society, and that evidence has been presented with proof. On 2060 Chaitra 20 (2 April 2004), the Blue Diamond Society organized an event on the
[BDS 2004 CASE - working translation] 18

right to homosexuality, inviting as its chief guest the Hon. Deputy Speaker of Parliament. After the event, a rally of homosexual persons, holding banners and placards, came out sloganeering. On 2060 Chaitra 21 (3 April 2004), newspapers, including the State-owned Gorkhapatra, The Kathmandu Post, Kantipur Daily and the Annapurna Post covered that event. I have included those news articles as proof, together with this writ petition. On 2060 Chaitra 21 (3 April 2004), Gorkhapatra published a news story titled Homosexual persons everywhere in the capital - this is a human rights movement, Kantipur Daily published Homosexual persons in public hearing, the Annapurna Post published Homosexual persons took to the streets to maintain existence and The Kathmandu Post published Same Sex Relationship, LOUDEST WHISPER IN SOCIETY. Photographs of homosexual persons holding placards with messages, such as Sexuality is not a choice and End Gender Discrimination were also printed in the papers. Copies of these news articles and photographs were presented, together with the writ petition. Regardless of such evidence, the darpith order issued by the Registrar stated that the petition had been brought by the petitioner to register on a hypothetical basis. Such a darpith order was issued with an intention to twist/deviate the main content of the petitioner's petition. Similarly, the petitioner has already made it clear in above paragraphs that the darpith order stating that the same sex relationship between adult homosexuals cannot become the subject of criminal law is considered illegal by Nepal's prevailing law. The petitioner's petition, which was presented with an absolute legal question, together with proof and evidence of public concern, was rendered by the Registrar's darpith as not being a matter of public concern and without a clear legal basis. Such a darpith order is faulty. Therefore, I request for the cancellation of the darpith order, issued by Registrar of the Supreme Court, Shree Prasad Pandit, on Monday, 2061 Asar 8 (22 June 2004) and for the registration of my writ petition. 5. The details provided here are accurate. If there are discrepancies, I shall endure, understand in accordance with the law. Petitioner Achyut Prasad Kharel Advocate Certificate No. 2748 Date: 10th day of the month of Asadh, 2061 BS (corresponding to 24 June 2004), Thursday

[BDS 2004 CASE - working translation] 19

Supreme Court, One-Judge Bench Hon. Judge Mr. Badri Kumar Basnet Order Supreme Court, Petition Registration Section. In relation to the darpith order issued by the Registrar, whether the issue raised by the petitioner is a matter of public concern and which of the decisions the petitioner wants to have annulled, this is a matter for the bench to examine/deliberate on. It appears from the writ petition that there is not a demand for the annulment but to have the issue included in a Schedule. Such an issue appears to be a matter of narrative/elaborative decision. Therefore, the darpith order, issued by the Registrar on 2061/3/8 (22 June 2004) does not seem valid, and has been annulled. Should the writ petitioner wish to register a petition, have it registered and act in accordance with the law. Signed Judge Date: 24th day of the month of Asadh, 2061 BS (corresponding to 8 July 2004), Thursday

[BDS 2004 CASE - working translation] 20

An Order Issued by Mr. Shree Prasad Pandit, Judge, Supreme Court A petition from petitioner Achyut Prasad Kharel states that Numbers 1 and 2 of the Chapter on Marriage in Naya Muluki Ain, 2020 (1963) and Section 4 of Marriage Registration Act, 2028 (1971) provide that in order for a marriage to occur, members of the opposite sex, i.e. man and woman, are required, and that Number 4 of [the Chapter on] Bestiality bans unnatural sexual intercourse. Against this backdrop, the petitioner requests that same sex (homosexual) relationships and same sex marriage as well as activities that promote the right to homosexuality be banned. This petition, which was brought for registration, requests that same sex (homosexual) relationships and same sex marriage be banned. From a study of relevant legislation and documents, in relation to the registration of this petition, it did not seem that the sexual activities conducted by adult homosexual persons, in private or personal locations, could become a subject for criminal law. Against Nepal's current legal scenario, the issue raised by the petition is not found to be a matter of public concern; the writ petitioner is also not found to maintain clearly in his petition which decision he would like to have annulled; which of the petitioner's constitutional right has been violated, and against which law it is when same sex marriages occur and same sex (homosexual) relationships are maintained. Given that the petition has only been prepared on the basis of a hypothetical issue, the writ petition is not in a position to be registered, pursuant to Rule 15(2) of the Supreme Court Regulations, 2049 (1992); therefore, in accordance with Rule 27(2) of the same Regulation, 2049 (1992) and A. Va. Number 27, a darpith order has been issued. Do as per the rule. Signed (Shree Prasad Pandit) Registrar Date: 8th day of the month of Asadh, 2061 BS (corresponding to 22 June 2004), Tuesday

[BDS 2004 CASE - working translation] 21

3736 061/3/25/6 (Thursday, 9 July 2004) A Petition Presented to the Supreme Court Subject: Summary of main demand/claim mentioned in the given writ petition submitted in accordance with Rule 40(a) of the Supreme Court Regulations, 2049 (1992). Advocate Achyut Prasad Kharel, resident of Kavrepalanchok District, Kharelthok VDC, Ward No. 4, Kharelthok ----------------------------------------------------------- 1 Petitioner Versus His Majesty's Government, Office of the Prime Minister and Council of Ministers, Singha Durbar, Kathmandu -------------------------------------------------- 1 His Majesty's Government, Ministry of Home Affairs, Singha Durbar, Respondents Kathmandu ---------------------------------------------------------------------------------- 1 His Majesty's Government, Ministry of Law, Justice and Parliamentary Affairs, Singha Durbar, Kathmandu -------------------------------------------------------------- 1 District Administration Office, Kathmandu -------------------------------------------- 1 In relation to this petitioner's petition requesting for the issuance of necessary order of command, including certiorari and mandamus, in accordance with the Constitution of the Kingdom of Nepal, 2047 (1990), Article 88(2), this petitioner has presented in the writ petition itself details relating to such a demand/claim and the evidence to prove it. The main summary of that is as follows: 1. The Universal Declaration of Human Rights, 1948, together with 16 international human rights instruments, which Nepal has ratified, have not provided legitimacy to same sex marriage and same sex (homosexual) relationships. Article 23 of the International Covenant on Civil and Political Rights, 1966, which is one of those international human rights instruments, as well as Numbers 1 and 2 of [the Chapter on] Marriage in Naya Muluki Ain, 2020 (1963), Section 4 of the Marriage Registration Act, 2028 (1971) provide that in order for a marriage to occur, members of the opposite sex, i.e. man and woman, are required. Number 4 of Bestiality in Naya Muluki Ain, 2020 (1963) bans in clear terms unnatural sexual intercourse. Therefore, it has become clear that same sex (homosexual) relationships and same sex marriage, as well as any activity to promote or encourage them, are illegal. The writ petitioner requests for the issuance of necessary order of command, including certiorari and mandamus, in the names of bodies including His Majesty's Government, the Office of the Prime Minister and the Council of Ministers, named as respondents/opposition, to ban the promotion of same sex (homosexual) relationships and the right to homosexuality, as well as activities encouraging the right to homosexuality, and to publish a notice in Nepal Rajpatra (Nepal Gazette), in accordance with Section 35 of the Government Cases Act, 2049 (1992), to include offences relating
[BDS 2004 CASE - working translation] 22

to unnatural sexual intercourse under Number 4 of Bestiality in Naya Muluki Ain, 2020 (1963) in Schedule 1 of the Government Cases Act, 2049 (1992), in order to take effective steps for the prevention the offences relating to the same offences under Number 4 of Bestiality. 2. The details provided here are accurate. If there are discrepancies, I shall endure, understand in accordance with the law. Petitioner Signed Achyut Prasad Kharel Advocate Certificate No. 2748 Date: 4th day of the month of Asadh, 2061 BS (corresponding to 18 June 2004), Friday

[BDS 2004 CASE - working translation] 23

Writ Number: 3736 Date: 2061/3/25/6 (Friday, 9 July 2004) A Petition Submitted to the Supreme Court Subject: Request for issuance of necessary order of command, including certiorari and mandamus, in accordance with the Constitution of the Kingdom of Nepal, 2047 (1990), Article 88(2). Advocate Achyut Prasad Kharel, resident of Kavrepalanchok District, Kharelthok VDC, Ward No. 4, Kharelthok ----------------------------------------------------------- 1 Petitioner Versus His Majesty's Government, Office of the Prime Minister and Council of Ministers, Singha Durbar, Kathmandu -------------------------------------------------- 1 His Majesty's Government, Ministry of Home Affairs, Singha Durbar, Respondents Kathmandu ---------------------------------------------------------------------------------- 1 His Majesty's Government, Ministry of Law, Justice and Parliamentary Affairs, Singha Durbar, Kathmandu -------------------------------------------------------------- 1 District Administration Office, Kathmandu -------------------------------------------- 1 I, the petitioner, include herewith a payment of Rs. 500/-, the petition fee charged as per Rule 40(1) of the Supreme Court Regulations, 2049 (1992) and make the following petition on the basis of Article 23 of the International Covenant on Civil and Political Rights, 1966, Numbers 1 and 2 of the Chapter on Marriage in Naya Muluki Ain, 2020 (1963), Section 4 of the Marriage Registration Act, 2028 (1971), Number 4 of the Chapter on Bestiality in Naya Muluki Ain, 2020 (1963) and Article 88(2) of the Constitution of the Kingdom of Nepal, 2047 (1990): 1. I, the petitioner, am a masters' level (LLM) student of law at the Kathmandu School of Law (LLM) under the Purvanchal University and also a legal practitioner. As a sensible/conscious (chetanshil) citizen, involved in legal practice, this petitioner considers it his civic duty to abide by the law. In his capacity as a sensible/conscious (chetanshil) citizen, this petitioner is also alert (sajag) about the role he has to play, on behalf of the citizens, in the implementation of the law. If the country's prevailing laws don't come to the level of implementation, in practice the provisions within such laws, which have almost become inactive, cannot ensure the rights of the citizens. Not only that, the inactiveness of the country's prevailing laws gives an impression that the State is attempting to step away from its obligations. The State should be run in accordance with the law made by the Legislature. The rule of law can be realized in the real sense only if the Executive runs the State in accordance with the law made by the Legislature. But if the law made by the Legislature does not come to the level of implementation, it becomes clear that the Executive is attempting to step away from its obligation. Rule of law is a measure of a democratic and civilised nation. It is through a rule of law that citizens get to experience good governance.
[BDS 2004 CASE - working translation] 24

But the inactiveness of the law made by the Legislature and the indifference on the part of the Executive towards its implementation is clearly indicative of a mockery of the rule of law, good governance and democratic governance system. The main issue that the petitioner is attempting to raise relates to same sex relationships or homosexuality, which has been banned by Nepal's law. Nepal's law has only granted recognition to sexual relationships occurring between the natural individuals of the opposite sexes.3 But it has not granted recognition to same sex (homosexual) relationships. Nepal's law has prohibited sodomy or homosexuality, which goes against the rule of nature. But in the past 2-3 years, some organizations have been established in the direction of encouraging homosexuality. Such organizations have, directly or indirectly, been encouraging same sex (homosexual) relationships in the name of human rights. This has created public debate. As it would be necessary to ban such activities, prohibited by Nepal's law, I, the petitioner, have arrived at the door of court, in accordance to Article 88(2) of the Constitution of the Kingdom of Nepal, 2047 (1990). 2. Even though Nepal's law prohibits same sex (homosexual) relationships and same sex marriage, the fact that programs relating to the right to homosexuality have been organized from an institutional level and that His Majesty's Government has not imposed any kind of ban on such activities, has gone against the prevailing legal system. The occurrence of activities, which encourage the right to homosexuality in the name of human rights, against the prevailing legal system, and His Majesty's Government's tendency to offer concession4 to such activities have led to the creation of a public debate. This can be taken as an example of how non-governmental organizations, which have been addicted to harvesting the dollar, can act against the prevailing law and to what extent they can stoop so low to get naive, helpless and poor people involved in homosexuality in the name to meet their vested interests, promoting themselves as human rights defenders. The activities of the Blue Diamond Society, established in the Nepal's capital, Kathmandu, can be presented as a shining proof of this. Working to grant a legal right to homosexuality, this organization has been openly campaigning in favor of same sex (homosexual) relationships in the name of human rights, openly organizing programs in favor of same sex (homosexual) relationships and broadcasting the views of homosexual persons on television. Even when all this has happened, His Majesty's Government remains a silent spectator, which has led to the creation of a public impression as to whether His Majesty's Government itself is trying to encourage homosexuality. The Blue Diamond Society organized a program on the right to homosexuality, with someone holding a position as glorious as Deputy Speaker of Parliament, invited as chief guest, and openly campaigned in favor of the right to homosexuality. A rally emerged with slogans and placards as well as banners demanding the right to homosexuality. Even when an open campaigning was held in favor of same sex relationships and the right to homosexuality, prohibited by Nepal's law, the fact that His Majesty's Government remained a silent spectator makes it clear that His Majesty's Government is not committed towards the compliance and implementation of prevailing laws. At the same time, this can be taken as a clear proof of a flaw/shortcoming and indifference on the part of His Majesty's Government's Local Administration in relation to the compliance and implementation of the law. Activities of this nature have created a public
3

Nepal's law only recognizes sexual relationships occurring between the individuals of the opposite sexes as natural? 4 allow it to happen without hindrance

[BDS 2004 CASE - working translation] 25

debate/issue, tinged with public concern. This petitioner has arrived at the door of court to [request a] ban on illegal activities, which are being conducted in an organized manner, and to [request an end] to the Government's indifference towards such activities. 3. Even though the homosexual persons call the right to homosexuality a human right, in reality the right to homosexuality is not a human right. The four key characteristics of human rights are universality, indivisibility, inalienability and interrelatedness. The right to homosexuality cannot encompass any of these [characteristics]. Article 1 of the Universal Declaration of Human Rights states: All human beings are born free and equal in dignity and rights and Article 3 states: Everyone has the right to life, liberty and security of person. Those who express their opinion in favor of homosexual persons, maintaining that the homosexual persons also fall within the definition of all human beings in these provisions and, therefore, the State cannot deny them the right to homosexuality, have clearly not understood the spirit of Articles 1 and 3. As they put it, homosexual persons are also human beings. But they are human beings not because they are homosexual. In the hope of foreign dollars, those who promote the right to homosexuality as a human right must understand that the status of a criminal convicted of murder with proven offences and a good citizen with a moral character is not the same. This reality is also a universal phenomenon. None of the international human rights instruments, to which Nepal is party, including the Universal Declaration of Human Rights, 1948, have provided legitimacy to the right to homosexuality. Therefore, in the mindset of individuals or organizations, who promote the right to homosexuality as a human right, there is nothing more than a condemnable intent to only attract people from the poor, voiceless, helpless and ignored groups towards homosexuality and exploit them sexually. It is this petitioner's belief that the right to sexuality is not a human right. 4. In the past 2-3 years, some individuals and non-governmental organizations have been campaigning in favor of the right to homosexuality as a human right. However, such campaigning does not have any legal status. None of the international covenants/instruments, including the Universal Declaration of Human Rights, 1948, have provided legal recognition to same sex relationships, or homosexuality. Article 23(1), (2), (3), (4) of the International Covenant on Civil and Political Rights, 1966 deems a marriage necessary for a family foundation, providing that the State shall recognize the right of men and women of marriageable age to marry and found a family, and that no marriage shall be entered into without the free and full consent of the intending spouses. It provides that a marriage can only occur between natural persons of the opposite sex. Article 23 of the International Covenant on Civil and Political Rights, 1966, which Nepal has ratified, also does not encompass same sex marriage and same sex (homosexual) relationships. The petitioner considers it necessary include here the exact text of the provisions under the same 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 found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 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 at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
[BDS 2004 CASE - working translation] 26

In this way, even this International Covenant on Civil and Political Rights ratified by Nepal makes a specific provision that a man and woman are required for marriage. The spirit of Article 23 clearly denies same sex marriage and same sex (homosexual) relationships. 5. In the context of Nepal, it is certainly a mockery of human rights to openly campaign in favor of same sex relationships, or homosexuality, to provide it legal recognition, and to promote homosexuality, which is a character demerit of a human life, as a human right. Human rights are inalienable rights that one is entitled to enjoy as a human being. Universality, indivisibility, interrelatedness and inalienability are the inherent characteristics of human rights, whereas the concept of cultural relativism has also become an inseparable element of human rights in the present times. If we think from the cultural relativism perspective, same sex (homosexual) relationships and same sex marriage cannot become acceptable in our social lifestyle influenced by the Hindu religion. Homosexuality is not found to be endorsed in any of the Hindu scriptures, including the first religious text Veda, as well as the main religious texts, such as Brahman, Manusmriti, Upanishada and Purana. Having said that, there are temples of Hindu gods and goddesses featuring walls and slanting wooden poles (tundal) carved with artistic erotic pictures of homosexual activities. Based on these carvings, one could argue that homosexuality is not unnatural, but something that has been occurring in Hindu society, in a natural manner and with ease, since the era of gods and goddesses. However, in art, the reality cannot be uncovered by only undermining the fine artistic expertise. It is important that our attention is drawn towards the abstractness embedded in the fine art. Just like sukta, richa and various mantras mentioned in our religious texts are not word-driven but meaning-driven, the artistic carvings of our gods and goddesses on temple walls and slanting poles are symbolic. Therefore, it is this petitioner's belief that not embracing the inherent spirit and intention of such symbolic art and trying to underestimate it is the failure to understand the underlying spirit of our religious culture. 6. In the above paragraphs, the petitioner has mentioned that none of the 16 international human rights instruments, which Nepal has ratified up to now, or to which Nepal is party, including the Universal Declaration of Human Rights, have provided legitimacy to the same sex relationships, same sex marriage or homosexuality. The petitioner has also mentioned that these things go against the spirit of the International Covenant on Civil and Political Rights, which is among the 16 international human rights instruments. Now, the petitioner considers it necessary to clarify how same sex relationships, same sex marriage or homosexuality are illegal in Nepal's context. Various Numbers of the Chapter on Marriage in Naya Muluki Ain, 2020 (1963) state clearly that human beings of the opposite sex, i.e. man and woman, are required for marriage. Number 1 of the Chapter on Marriage states: Save within the relationship punishable under the Chapter on Incest, any marriage may be solemnized with one's consent according to one's own will and pleasure, subject to the provisions set forth in several Numbers of this Chapter. Where a marriage concluded happens to be within the consanguinity, the spouses thereto shall be separated. If one has deliberately concluded such a marriage, one shall be liable also to the punishment set forth in the Chapter on Incest. If one reflects deeply on the phrase such spouses thereto shall be separated, used in this provision, the implication is clearly that marriage requires human beings of the opposite sex; in other words, a marriage can only occur between man and woman. Likewise, Number 2 of [the Chapter on] Marriage states: While contracting a marriage, no one shall arrange to marry nor cause to be married where the male and the female have not completed the age of
[BDS 2004 CASE - working translation] 27

eighteen years with the consent of the guardian and that of twenty years in case of absence of the consent of the guardian. If one reflects deeply on the phrase while contracting a marriage ... the age of, the implication is clearly that marriage requires man and woman. Likewise, Section 4 of the Marriage Registration Act, 2028 (1971) talks about the conditions under which marriage may be contracted. Section 4 of the Marriage Registration Act, 2028 (1971) states: Marriage may be concluded: Except otherwise prohibited to get marriage pursuant to prevailing law, the following male and female may conclude marriage pursuant to this Act: (1) In case any of the male or female does not have husband or wife, (2) In case one of the male or female has not gone mad, and (3) In case both the male and female have completed the age of twenty years. The phrase the following male and female, used in this section, implies that male and female are required for marriage; in other words, a marriage can occur [only] between man and woman. In this manner, provisions under various Numbers of the Chapter on Marriage in Naya Muluki Ain, 2020 (1963), as well as Section 4 of the Marriage Registration Act, 2028 (1971), have made a specific provision that male and female are required for marriage; in other words, a marriage can only be contracted between man and woman. The requirement of human beings of the opposite sex for marriage [in these laws/provisions] makes it clear that Nepal's law does not accept same sex marriage. When there is a provision that that male and female, or [members of the] opposite sex, are required for marriage, it becomes clear that Nepal's law, through that provision, only recognizes the physical relationship occurring between married couples of the opposite sex. Obviously, it is clear from the provision requiring human beings of the opposite sex for marriage that it does not provide legal recognition to homosexuality. Additionally, as provided under Numbers 1, 2 and 3 of [the Chapter on] Bestiality in Naya Muluki Ain, 2020 (1963), no person shall commit, or cause to be committed, sexual intercourse with a female cattle, or commit, or cause to be committed, any other unnatural intercourse (maithun); likewise, if a woman enters into sexual intercourse with an animal, she shall be liable to punishment. Number 4 of the same Chapter states: Except as provided in the other Numbers of this Chapter, a person who commits, or causes to be committed, any other type of unnatural sexual intercourse shall be liable to the punishment of imprisonment for a term not exceeding one year and a fine of up to five thousand rupees. If one reflects [deeply] on the inherent implication contained in the phrase except as provided in the other Numbers of this Chapter ... any other type of unnatural sexual intercourse, it becomes clear that apart from the intercourse with four-legged animals, the unnatural sexual intercourse one human being has with another is also encompassed by this provision under Number 4. Same sex (homosexual) relationships also fall under unnatural sexual intercourse. Therefore, Nepal's law has banned/prohibited same sex (homosexual) relationships. 7. The petitioner has clarified in the above point no. 6 how same sex marriage and same sex (homosexual) relationships are illegal in Nepal's context. Provisions under Numbers 1 and 2 of [the Chapter on] Marriage [in Naya Muluki Ain, 2020 (1963)] and Section 4 of the Marriage Registration Act, 2028 (1971) specifically require human beings of the opposite sex, or man and woman, for marriage; Number 4 of [the Chapter on] Bestiality [in Muluki Ain, 2020 (1963)] prohibits unnatural sexual intercourse. Given these contexts, the activities relating to the establishment of a [non-governmental] organization with the main objective to campaign for the right to homosexuality in order to provide legal recognition to same sex marriage and same sex (homosexual) relationships are purely illegal. The same non[BDS 2004 CASE - working translation] 28

governmental organization has linked the right to homosexuality to human rights and encouraged the homosexual persons, [claiming] that the State cannot ban/prohibit the right to homosexuality because the Constitution of Nepal, 2047 (1990) includes human rights in its Preamble. These activities, too, are illegal. [This organization] organized a program on the right to homosexuality, with someone holding a position as glorious as Deputy Speaker of Parliament, invited as chief guest. An open rally, displaying placards and banners, emerged with sloganeering in favor of the right to homosexuality. Even when such an illegal activity took place in the country's capital, Kathmandu, Local Administration remained a silent spectator. In the absence of a provision for any other remedy, I, the petitioner, have arrived at the door of this competent court to request for the issuance of necessary order of command, including certiorari and mandamus, to prevent such illegal activities from taking place. 8. The petitioner has clarified in the above points/paragraphs how the right to homosexuality is illegal. He considers it important to also provide evidence regarding the campaigning, rallying and sloganeering, in favor of the right to homosexuality, carried out by the organization named the Blue Diamond Society, which is making an attempt to have legal recognition provided to the right to homosexuality. On 2060 Chaitra 20 (2 April 2004), the Blue Diamond Society invited the Hon. Deputy Speaker of Parliament as chief guest and organized a program on the right to homosexuality. After the event, a rally of homosexual persons, holding banners and placards, came out sloganeering. On 2060 Chaitra 21 (3 April 2004), newspapers, including the State-owned Gorkhapatra, The Kathmandu Post, Kantipur Daily and the Annapurna Post covered that event. I have included those news articles as proof. On 2060 Chaitra 21 (3 April 2004), Gorkhapatra published a news story titled Homosexual persons everywhere in the capital - this is a human rights movement, Kantipur Daily published Homosexual persons in public hearing, the Annapurna Post published Homosexual persons took to the streets to maintain existence and The Kathmandu Post published Same Sex Relationship, LOUDEST WHISPER IN SOCIETY. Photographs of homosexual persons holding placards with messages, such as Sexuality is not a choice and End Gender Discrimination were also printed in the papers. I have presented copies of these news articles and photographs, together with the writ petition. 9. Classifying same sex marriage and same sex (homosexual) relationships under the offence of unnatural sexual intercourse, Number 4 of [the Chapter on] Bestiality in Naya Muluki Ain, 2020 (1963) prescribes the punishment of imprisonment for a term not exceeding one year and a fine of up to five thousand rupees. However, due to the lack of clarity in relation to its implementation methodology, some difficulties have cropped up. In broad daylight, a rally of homosexual persons, holding placards and banners, and sloganeering in favor of the right to homosexuality, emerged in the capital. As well, homosexual persons are everywhere, including public places such as the capital's open junctions (chowk), streets, restaurants and hotels. Even when so much has happened, Local Administration remains a silent spectator and has failed to prevent these activities. The petitioner is of the opinion that the lack of clarity in relation to implementation methodology has also played an important role in this. Banned by Nepal's law, same sex (homosexual) relationships are a criminal offence of serious nature that erodes social norms and values as well as structure. Regardless of this, [homosexuality] has not been included in Schedule 1 of the Government Cases Act, 2049 (1992). Nepal's law has classified same sex (homosexual) relationships under unnatural sexual intercourse, considering it an offence. However, difficulties in relation to the methodology to prevent it have emerged. In Schedule 1 of the Government Cases Act, 2049
[BDS 2004 CASE - working translation] 29

(1992), a specific list of criminal cases in which His Majesty's Government shall be plaintiff. Schedule 2 provides a list of civil cases in which His Majesty's Government shall be plaintiff. The Act mentions clearly the provisions regarding cases in which the government shall be plaintiff; there is also clarity in the Act regarding the methodology to be followed when a case is being pursued. But an offence considered unnatural sexual intercourse under Number 4 of [the Chapter on] Bestiality in Naya Muluki Ain, 2020 (1963) has not been included in Schedule 1 of the Government Cases Act, 2049 (1992). Therefore, difficulty has been created in relation to the methodology to prevent/ban same sex (homosexual) relationships, which fall under the offence relating to unnatural sexual intercourse. Even though there are difficulties in relation to the methodology to prevent/ban same sex (homosexual) relationships, which has been categorized by Nepal's law under an offence relating to unnatural sexual intercourse, Article 35 of the Government Cases Act, 2049 (1992) states: His Majesty's Government, by producing notice in Nepal Gazette, may add or delete the cases stipulated in Schedule 1 or 2. Therefore, it is the petitioner's demand that an offence under Number 4 of Bestiality also be included in Schedule 1 of the Government Cases Act, 2049 (1992) through the publication of a notice by His Majesty's Government in Nepal Gazette. 10. In this way, none of the 16 international human rights instruments, which Nepal has ratified up to now, or to which Nepal is party, including the Universal Declaration of Human Rights, 1948, have provided legitimacy to same sex marriage, same sex relationships or homosexuality. Article 23 of the International Covenant on Civil and Political Rights, which is among the 16 international human rights instruments, together with Numbers 1 and 2 of [the Chapter on] Marriage in Naya Muluki Ain, 2020 (1963) and Section 4 of the Marriage Registration Act, 2028 (1971) provide that human beings of the opposite sex, i.e. man and woman, are required for marriage. Number 4 of [the Chapter on] Bestiality in Naya Muluki Ain, 2020 (1963) has banned/prohibited in clear terms [the practice of] unnatural sexual intercourse. Therefore, it has become clear that same sex (homosexual) relationships and same sex marriage, together with as any activity to promote or encourage them, are illegal. I request for the issuance of necessary order of command, including certiorari and mandamus, in the names of bodies including His Majesty's Government, the Office of the Prime Minister and the Council of Ministers, named as respondents/opposition, to ban the promotion of same sex (homosexual) relationships and the right to homosexuality, as well as activities encouraging the right to homosexuality, and to publish a notice in Nepal Rajpatra (Nepal Gazette), in accordance with Section 35 of the Government Cases Act, 2049 (1992), to include offences relating to unnatural sexual intercourse under Number 4 of Bestiality in Naya Muluki Ain, 2020 (1963) in Schedule 1 of the Government Cases Act, 2049 (1992), in order to take effective steps for the prevention the offences relating to the same offences under Number 4 of Bestiality. 11. The details provided here are accurate. If there are discrepancies, I shall endure, understand in accordance with the law. Petitioner Signed Achyut Prasad Kharel Advocate Certificate No. 2748
[BDS 2004 CASE - working translation] 30

Date: 4th day of the month of Asadh, 2061 BS (corresponding to 18 June 2004), Friday

[BDS 2004 CASE - working translation] 31