A marriage 3. Right to public assembly 4.

A RESEARCH PAPER ON
INTEREST OF SAARC COUNTRIES ON LGBT RIGHTS

 

 

 

 

 

 

 

 

 

Submitted by ; Team number 26.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

INTRODUCTION

Human rights are equal for people with all
the social standards and social norms.  Be
it women, children, men, couple or LGBT. 
But while coming to the practical aspect of daily life people tend to
“forget” the LGBTs.  LGBT stands for
lesbian gay bisexual and transgender and along with heterosexual, nowadays it
is also called LGBTIQ where I stands for intersex persons and Q stands for people
who are still questioning their sexual identity.

Normally, we tend to forget to cast light
upon those LGBT people who have a different sexual identity then most of us. The
society must cast light upon those groups of people as well.

 

OJECTIVE

The objective of this research paper is to
briefly know about the rights provided to the LGBT in the context of South
Asian countries.

 

LIMITATION1 2 

This research paper is limited within the
study of rights provided to LGBT only.

 

RESEARCH METHODOLOGY

This research paper is based on secondary
source of data where the research is done through

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The so called normal people in the society seems
to be privileged with many rights and freedom compared to the LGBTs. The LGBT
are deprived with many such rights. Maybe it is not in the forms of
constitutional remedies but inform of the society’s see through.  Some lists of rights which the LGBTs are
deprived of are listed below:

1.     
Freedom of expression

2.     
Right to family and marriage

3.     
Right to public assembly

4.     
Right to social security

5.     
Right to privacy

6.     
Right to education

 

Human rights are the basic rights and freedom
belonging to everyone from birth to death. It doesn’t matter from where you are
from, what you believe, what you chose to like and how you chose to like. Although
they can be restricted sometimes for e.g. if a person breaks law or interest of
national security. The basic human rights are based on values like dignity,
respect, independent and equality. 

 

The SAARC countries have also been on focus
when it comes to the legalization of LGBT rights. South Asia is home to
successful and impressive LGBT activist organization.  The Humsafar Trust (Mumbai) , Naz Male Health
Alliance (Karachi) ,Bandhu Society (Dhaka) , Equal ground (Colombo) and Blue
Diamond Society (Napal).

The SAARC countries with their legalization regarding
the LGBT rights are listed below:

 

COUNTRY

Legalization of
LGBT rights

Afghanistan

Illegal.  Penalty: long imprisonment or death penalty.

Bangladesh

Illegal. Penalty: 10
years to life imprisonment.

Bhutan

Illegal. Penalty:
prison sentence up to 1 year.

India

Illegal under
section 377 of Indian Penal code. Penalty: Up to life imprisonment as well as
torture.

Maldives

Illegal. Penalty:
For men the punishment is banishment for 9 months to 1 year for women, house
arrest for 9months to 1 year.

Nepal

Legal since 2007. Also
signed the UN documents. But the couple are not socially accepted in the society.

Pakistan

Illegal. Penalty: 2
years of life sentence.

Sri Lanka

Illegal. (Decriminalization
proposed)

 

 

 

 

 

 

 

The brief views of the counties oven same sex marriage

1. Sri Lanka

Sri Lanka has an authoritarian climate for
sexual minorities, homosexuality is illegal under article 365 a and household
headed by same sex couple are not eligible for any protection given to married
couples .The government announces that however the government has announced
that the constitution of Sri Lanka bans discrimination based on sex and they
provide no recognition for same sex couple. 1

  Legality of same sex sexual
activity

 The
political framework of Sri Lanka is pre dominantly being inherited from UK but
has a strong influence of Dutch and Portuguese tradition .The two main illegal arbitrators
used against homosexuals are anti-sodomy law and gender personalization law.

Article 365 A

 It
prohibits anyone irrespective of gender from engaging in gross indecency which
is not explicitly defined although stiffer sanctions apply if one person under
the age of 16 in Jan 2016 cabinet member of Sri Lankan government banned his
provision of same sex marriage.

 

Same sex sexual activity is illegal and decriminalization
is proposed although anti-discrimination law in employment, anti-discrimination
law in the provision on good and services and anti-discrimination law in all
the other area since 2017.

 

 2. Pakistan

The LGBT right are consider taboo in Pakistan
.Pakistani law prescribe for same sex sexual act the Pakistan penal code of
1860 originally developed on a colonialism punishers, sodomy with a possible prison
sentence and has other provisions of LGBT Pakistanis under the guise of
protecting public mortality and order. Despite being a legal offence acts of
homosexuality are rarely prosecuted in the country. Same sexual activities skill
legal and find less than 2-10 years of imprisonment, they cannot serve the
military but the transgender people are allowed to change the gender and no
family rights are provided to the couples.

The Pakistani constitution does not
explicitly make mention of sexual orientation for gender identity, it contains
certain provision that may impact the constitution right of LGBT.

Part 37 the government pledges to promote
Islamic value mong its Muslim citizens and appose obscenity.

Part IX 27 Islam is the official state
religion and all law rules regulation and other such legislation must be
compatible with Islam an appointed by the government appointed Islamic council.2

 

3. Bhutan

 While
Bhutan is pre dominantly teaches value like compassion and tolerance, its law
are highly unfavourable towards LGBTs community that forms a tiny segment of
its society. Homosexuality has been criminalized by the penal code of Bhutan. Clause
213 that states that dependence must be guilty of the offence of unnatural sex
if the defendant engages in sodomy or any other sexual conduct against the
order of nature. According to IBBS survey among the vulnerable and key
population of Bhutan 2016 oven 42% of transgender women and 23% of gay bisexual
are among the risk and have attempted multiple suicide3.

Bhutan law do not provide any law for
discrimination protection to these people. Recognition of couple is not done
and the couple are also not allowed to adopt any child. Under Article 213 and
214

 

4. Bangladesh

LGBT people in Bangladesh do not enjoy the
same right the non LGBT people enjoy due to the conservative mind set if the
people in Bangladesh under section 377 of Bangladeshi penal code. Whoever
voluntarily has the carnal intercourse against the order of the nature with any
men women animal shall be imprisoned for life. Third gender is recognized but
no discrimination protection is made, family relationship has not been recognized.

Still part 2 article 19 promises equal opportunities
for all citizens. Part 3 article 27promise equality in front of the law for all
the citizens. Thus, same sexual activity is awarded with life imprisonment or
death. Equal age consent and anti dicrminational law in the provision of goods
and services and all other sectors, same sex marriage, stepchild adaptation is
all restricted by Bangladeshi penal code. 4

 

5. Maldives

 LGBT rights
still in development as the country continues to strongly reform an LGBT rights
development though universally periodic review and other recommendation was one
of the member of UN declaration on sexual identity. Homosexuality was originally
criminalized in Maldives in 1880s. The Maldives law criminalized homosexuality.
The penal codes of Maldives work with Islamic Sharia law imposed to punish any
act related to homosexuality to life imprisonment or ‘hang to death’

Same sexual activities are illegal. Under the
penal code of section 410 (a) criminalizes same sex marriage. Under section 131
of Maldives penal code is related to prohibition of sexual contact without any
reason permitted under Islamic Sharia law. Section 411 (a) 2 and 412(d)
consider this an unlawful activity and penalize it with life imprisonment. The
punishment includes up to eight years of imprisonment. 5

 

 

6. Afghanistan

 The
penal code of 1976 was reinstated after the America invasion and it has several
provision. Article 398 427 512 all stated that same sexual marriage is illegal
and life imprisonment to death. Same sex marriage is banned.6

 

7. Nepal

Same sexual marriage is legal since 2007.
Yes, transgender are allowed to change their gender. LGBT are allowed to serve
in military openly. Discrimination protection is provided by the constitution
but no family recognition and they cannot adopt a child.

 

8.  India

 Same
sexual marriage is illegal under IPC penalty up to life imprisonment. Transgender
people have constitutional right to change gender and third gender is recognized.
There is no discrimination protection, no military service , no recognition to
relationship and they cannot adopt a child . 7

 

 

Case studies:

 

Afghanistan

 

8The pleasing of Zia Hussain has been
dismissed from the supreme court of Afghanistan on the basis as this case
violates the law made by the government of Afghanistan.  Same sex marriage and same sex intercouse is
not legal and is not entertained by the society of Afghanistan.  So the pleading of Zia Hussain is vague and these
types of actions are illegal and not acceptable in the society under the
Islamic Sharia law is applied here. Article 398 article 427, 512 is in against
the LGBT rights. 

The constitution stipulates that Afghanistan is an
Islamic republic so LGBT people in Afghanistan will be charged to be violating
Sharia law in lieu of being bought under penal code. The Afghanistan law on
marriage 1971 also considers it illegal .Article 430 estates that instigation
of delinquency.

 

Nepal

9 Sunil Babu Pant and members filed a case
against the government of Nepal so as to claim the recognition of the sexual
orientation of the minority groups of people. The pleading of Pant and members was
positively decided by the government of Nepal. The government of Nepal was
directed to make legal provisions after considering recommendations made by the
said committee. 

After the judgement on this case the law was passed in Nepal
the “marginalized” people were allowed to get married legally but no such
social inclusion and acceptation has been seen yet.

 

CONCLUSION

 Hereby, we
conclude that transgender people are the part of society and we cannot deny on
the fact that the western culture realize that soon and in SAARC countries
which spicily provide safety to human rights are ignorant against the
transgender and are directly eliminating their basic fundamental rights . So,
to crate gender equality and to compete with te west the SAARC countrie have to
come together to give them rights and dignity so that these people can work for
their country rather than fighting for iridentity.

1 https://googleweblight.com/i?u=https://en.m.wikipedia.org/wiki/LGBT_rights_in_Sri_Lanka&grqid=_wIVw_Ib&hl=en-IN

2 https://guides.nyu.edu/c.php?g=276622&p=1845132

3 https://en.m.wikipedia.org/wiki/LGBT_rights_in_Bhutan

4 https://www.theguardian.com/artanddesign/gallery/2016/aug/04/bangladesh-lgbt-community-gazi-nafis-ahmed-in-pictures

5 https://en.m.wikipedia.org/wiki/LGBT_rights_in_the_Maldives

6 http://www.bbc.com/news/world-asia-36884732

7 https://en.m.wikipedia.org/wiki/LGBT_rights_in_India

8 Zia Hasan vs government of Afghanistan

9 Sunil Baby Pant vs government of Nepal

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