SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

sought model guidelines from the petitioners in this regard. The court pointed out that women
and children find themselves in unequal social positions in Nepali society and particularly in
cases where they have suffered violence they would hesitate to approach the courts for justice
unless their privacy was protected. This was also true of persons living with HIV persons
who have to deal with severe social stigma. In this regard the court observed:
“At a time when the judicial remedy is required against all kinds of injustice,
due to the fear of being a victim of additional neglect and boycott in the event of
disclosure of one's infected physical condition and identity coupled with
systemic delay, one may opt for discarding the process of judicial remedy. If
such a situation is created, the infected person has not only to face a threat to
his/her life rather if such an infected person, who is incurable and dejected,
behaves in a way as if s/he was not infected, a vicious circle of infection is
created.”
The court pointed out that the rights to equality, personal freedom, opinion and expression
and access to justice are inviolable and that the right to privacy is linked to all of these rights
in an indivisible manner, thereby prohibiting outside interference in the personal matters of
an individual.
Expanding on the notion of access to justice the court framed its role as “a service” and
stated:
“By a mere declaration of rights in the law negative social psychology or
obstacles existing in the way of enjoyment of the rights may not disappear
automatically. If such a reality is ignored, there may be a danger of our findings
becoming more technical than substantive. As a result, our services may not be
automatically available to the people for whom they have been created or to
whom they have been dedicated. If favourable conditions are not created, the
parties, despite their willingness, may not have the capacity to accept our
services. In that event a situation may arise where our services may not be
available to those who need them most whereas those who do not need them may
get more benefited by them. Therefore, taking into consideration such a stark
reality, it is necessary to, by ensuring an individual's right to judicial remedy,
grant him/her effective and easy access to justice and to guarantee privacy of the
personal identity of the parties involved in the judicial process through the
protection of the right to privacy. Its main objectives are that the concerned party
may not lose his/her courage to seek remedy against injustice and s/he may not be
made to experience any additional disqualification or disadvantage in practice for
the reason of having raised one's voice against injustice. It is the belief of this
Bench that if in the eyes of the incapacitated sections of the society our services
lose attraction or do not carry conviction it shall have to be treated as an
indication of the gradual end of the social utility of our services.
In fact, the right to access to justice is a right covering an expansive area which
has got various complementary dimensions. Out of them, in addition to other
matters, it is clear that the protection of the right to privacy of the victim is an
important part. It is essential for the judicial system to always maintain a balance
between the obligation to give fair treatment to the parties present in the judicial
process and the right of the parties to have access to justice. In this context,
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