Nepal’s New Criminal Code: is it backtracking ?

Kathmandu/Pahichan -Iconic LGBTI figure Sunil Babu Pant has started a debate about new Criminal Code’s section 226 from the LGBTI perspective. After the intensive study about the provisions of this code, he has shared his view with national and international experts seeking their suggestions. He has also talked about steps that community must take to ensure the rights of LGBTI.

This is the observation made by Sunil Babu Pant on Article 226. Prohibition of unnatural sexual intercourse: (1) No person shall have, or cause to be had, unnatural sexual intercourse with another person without his or her consent.  Explanation: For the purposes of this sub-section, consent given by a child shall not be considered to be consent. (2) A person who commits an offence under subsection (1) shall be liable to a sentence of imprisonment for a term not exceeding three years and a fine not exceeding thirty thousand rupees. (3) A person who commits an offence under subsection (1) against a child shall be liable to a sentence under Section 219.  When I read first I thought it looks OK as it says “punishable when it is without a consent”.

He argue “But after re-reading the article and looking at the history of Nepal’s LGBTI legal/constitutional challenges and/or progress, I have a doubt that, as there is no protection or recognition of same sex relationships by either new civil code or or by new criminal code, police may misuse this clause or a judge may say ‘only punishment is not defined by the law, but unnatural sex even with consent is still not defined as legal’ by the law of the land.”

He further adds “I am saying it because, despite the 2008’s supreme court directive order to Nepal govt to change or amend all discriminatory laws, nothing has happened so far in this regard, rather the new civil and criminal codes are still discriminatory against LGBTIs. Supreme Court then also said that LGBTI people are ‘natural’ but this new criminal code mentioned about “unnatural sex” and de-facto saying that the sex between same -sex partners are “Unnatural”, but also broadly making oral and anal sex between the heterosexual couples “unnatural”. Despite new constitution has been guarantying LGBTI rights and equality, the parliament passes such ‘LGBTI excluding and discriminatory laws’. I am not sure whether, technically, this article criminalizes same sex relationship directly or not, but I see it as an attempt to vaguely re-criminalizing from the “back door”. Whatever the legal-technicality of this law, this is definitely a back-tracked development, given all the history of Supreme Court’s 2008 decision and new constitution’s guarantee of LGBTI rights and equality. Otherwise there was no need to have this article when separate article that deals with ‘rape’ could have deal with all kinds of non-consensual sexual intercourse. Why did they think they needed the draconian “unnatural sexual act law” separately when there is already a rape law that also punishes non-consensual sexual act? Deeply embedded prejudices among the law makers have manifested. This law makes it sound like having “natural” sex without consent is OK!! Sex without consent is not sex: it’s RAPE.  Let alone the question of how (and if) they define “natural” and “unnatural.”

Responding to Sunil Panta,Aditya a well known lawyer from India writes:”While the concerns that you have raised is valid and I understand where it comes from given the history of the movement in Nepal & the persecutions that have happened in the past, I would like to point out a few things that may ease your concerns a little bit.Criminal law is construed strictly, which in other words mean that anything that is given in the statues has to be read to main exactly that and nothing more. Criminal law cannot therefore be given a wider expansion or explanation or interpretation than what it means on the face of it. Therefore if the statute says that only non consensual sex is to be criminalized, then it need to be read to mean only non consensual sex and nothing else. I think what subsection 2 and 3 does is really explain that consent does not necessarily cover the consent is extracted from somebody who is a minor. A necessary protection against CSA!”

 He adds “In the interpretation of criminal law there is also a provision that says that something that is not A crime at the time the actress commissioned cannot be criminalized by giving it a retrospective effect. Another words if something is not to describe is a crime then it cannot be punished under the law. In the instant case consensual sexual activity is not described as a crime and therefore cannot be punished.”

he is of the opinion that “As far is the question of what is legal and what is illegal is concerned, I just like to point out that there are very few things that are specifically legalized in law and the presumption always is that if something is not specifically Illegalised, then it would be legal and valid under law. For example eating food in a public place is legal as long as it is not specifically prohibited to eat food in certain public places (for example within the Delhi Metro). This is understandable in as much as it is not possible for Law to take into account the millions of activities that everybody does and therefore what it actually does is to take into account those activities of individuals that should not be done because they harmful for society and makes them illegal, while rest of the activities remain legal and valid.Seen in the above light it is quite understandable that the legislature does not want to specifically say that same-sex relationships is legal. As long as the law does not specify it is illegal, there is no reason to presume that there is a law against it or that it is illegal or invalid.”

The lack of understanding of the law by law enforcement agencies and the police is what is really the crux of the problem of that I think you have highlighted. It is the fact that the police may miss interpret the law or say that there is no Valley provision that says the same sex relationship is illegal. However that is not a matter for the legislated to actually deal with. It can be a matter for a public interest litigation of the degree of abuse perpetrated by the police actually reaches an unacceptable level. You can also be a matter that says that we need to do more work with the police to sensitive them about the law he argues.

he questions “would this be really means is that activism in Nepal should continue to sensitise the general population and the police and also to asset the game that there is nothing illegal about same-sex relationships and therefore same-sex relationships should be accorded the same dignity and writes that is accorded to any other citizen of Nepal.”

Responding to Sunil Advocate Sujan Panta, awell known LGBTI Lawyer from Blue Diamond Society, highlights the discriminatory provision son all codes and their procedures as followings

Concern of LGBTI on Code

  1. Act to Amend Civil Laws Amendment and Unification 2074

  *   Section 18 Non Discrimination has categorized similar language that is there in Article 18 of constitution but despite listing other categories sexual and gender minorities is left out as category of non-discrimination

  *   Section 19 Special treatment and positive discrimination fails to list LGBTI which is against the Article 18 of the constitution

  *   Provision regarding marriage: Section 67 is major concern for LGBTI what is considered to be marriage. Only men and women accepting eachother as husband and wife is considered as marriage. This provision is extremely negative against Supreme Court verdicts and against constitution and against international commitments.

  *   Similarly section 68 only defines marriage as social institution among men and women. Section 70 marriages between men and women are only possible and only talks about age criteria that men and women can marry.

  *   Section 71 criteria of void marriage only considered men and women71 (2) talks about no sexual organ or infertility as ground that marriage can’t be done and voidable marriage states only men and women.

  *   Section 76 allows only husband and wife to register their marriage and Section 88 states only Husband’s house is consider as residence of wife.

  *   In Provision Regarding Divorce: Section 94 and 95 only sets criteria of divorce between men and women

  *   Section 169 on adoption talks about adopted son and daughter only and

  *   According to section 172 one has to attain age of 45 years and remain unmarried men/ women to adopt child which means LGBTI people can adopt only when they attain that age. In one hand marriage is not allowed and adoption has very difficult for LGBTI people thus this provision of Code is very discriminatory.

  *   Section 205states Partition of property can be done with son and daughter only. Instead it should be children as mention in the constitution article 18 (5)

  1. Act to Amend Civil Litigation Procedure Amendment and Unification 2074

  *   In Section 2 and 29 only son and daughter is mention instead it should be adopted children37

  *   All formats regarding procedure in annexes contain only son and daughter and husband and wife

  1. Act to Amend Prevailing Laws of Criminal Offence Amendment and Unification 2074

  *   Section 105 provision regarding HIV is very regressive and often possibility that Gays and TG who might have HIV might be punished based on this laws.

  *   Offences relating to marriage is contrary to provision in civil code and it has not written men and women as in civil code instead word person has been used which is very positive.

  *   In Section 171Word person is used instead of husband and wife and in 172 provision on incest no one should marry with in clan is written that makes language very positive and other affirmative language can be seen in section 173 where the age to attain marriage of person is 20 is written and contains no word like men and women as in civil code and procedure.

  *   But in section 175 again contrary as again in polygamy men and women is written.

  *   In section 213 kidnap again unnatural sexual activities is mentioned.

  *   Section 219 states rape victim only women and fail to recognize that Gay and Transgender can also be raped which is negative. It talks about anal sex also rape but victim is only women which is very regressive provision

  *   Another provision section 226 on Unnatural Sexual activities emerges as separate crime and provision previously was under Chapter of Bestiality. It states No one should unnatural sexual activities without consent. Another threatening part of this provision is that Unnatural sexual activities is not defined anywhereand Punishment up to 3 years and fine up to 30 thousand mentioned. This provisions can and might be used against LGBTI people by law enforcing authority as unnatural sex is not defined and they might interpret sex of LGBTI as unnatural which is very threating against right to equality and rights to privacy and other rights guaranteed by constitution.

  *   Similarly section 227 on sexual harassment fails to address that LGBTI people can also be harassed as it explains No one should commit sexual harassment to anyone but again define husband and wife

  1. Act to Amend Criminal Litigation Procedure Amendment and Unification 2074

  *   Section 7(11) talks about women police to arrest women but again fails to states who should arrest a transgender.

  *   Formats in Annexes only talks about son daughter, husband and wife.