Understanding Constitutionality: Nepal's Landmark Decision To Legalise Same Sex Marriages

In a groundbreaking move, the Supreme Court of Nepal has recently issued an interim order legalising same-sex marriages in the country. The court directed the relevant government offices to establish a transitional mechanism for the registration of marriages between same-sex couples. This decision marks a significant step towards achieving equality and protecting the rights of sexual and gender minority communities in Nepal. This article will examine the constitutionality of this decision and its implications for the country.

The Interim Order

On June 28, 2023, Justice Til Prasad Shrestha, presiding over a single Bench, passed an interim order in response to a Public Interest Litigation (PIL) filed by Pinky Gurung, the current president of the Blue Diamond Society. The PIL aimed to secure equality before the law for vulnerable sexual minority groups in Nepal. In response to this plea, the court ordered the government to establish a transitional mechanism and a separate register of marriages for same-sex couples and gender minority communities.

Constitutional Rights And Equality

The Supreme Court's decision to legalise same-sex marriages in Nepal is rooted in the constitutional principles of equality and non-discrimination. Nepal's Constitution, adopted in 2015, guarantees the right to equality before the law and prohibits discrimination based on various grounds, including sexual orientation and gender identity. By recognising the right of same-sex couples to marry, the court is upholding the constitutional values of equality and non-discrimination.

Practical Solution

While the court's interim order does not immediately result in a comprehensive marriage equality law, it provides a practical solution for members of sexual and gender minority communities who wish to legally register their marriages. Same-sex couples and individuals identifying as third genders can now enjoy the same rights and benefits as heterosexual couples. This decision is a significant development in ensuring the protection and inclusion of LGBTQIA+ community in Nepal.

Parliamentary Role

The court's order also highlights the role of Nepal's Parliament in addressing marriage equality. Although the interim order paves the way for same-sex marriages, it is essential for the Parliament to pass comprehensive legislation that fully recognises and protects the rights of sexual and gender minority communities. The order serves as a catalyst, urging the Parliament to enact a marriage equality law to solidify and institutionalise LGBTQIA+ rights.

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International Perspective

Nepal's decision to legalise same-sex marriages aligns with global trends towards recognising and protecting the rights of sexual and gender minorities. Several countries around the world have already legalised same-sex marriage, acknowledging the importance of equality and non-discrimination. Nepal's progressive stance on this issue demonstrates its commitment to human rights and sets an example for other nations seeking to promote inclusivity and diversity.

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The Supreme Court of Nepal's interim order legalising same-sex marriages is a monumental step towards achieving equality and protecting the rights of sexual and gender minority communities. By recognising the constitutional rights of same-sex couples, Nepal is moving closer to ensuring equal treatment under the law. While the court's decision provides a practical solution for registering same-sex marriages, it also calls for comprehensive legislation from Parliament to solidify these rights. Nepal's progressive stance on marriage equality serves as an inspiration to nations worldwide, emphasising the importance of equality and inclusivity in contemporary societies.

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