Sri Lankan Supreme Court Cites Indian Supreme Court Judgments While Upholding Bill Decriminalising Homosexuality [Read Judgment]
The judgments in Navtej Johar & KS Puttaswamy cases were cited by the Sri Lankan SC.
As the constitution bench hearing in the marriage equality petitions entered the seventh day here in the Supreme Court, it was announced in Colombo that the Sri Lankan Supreme Court had given the green light to a bill seeking to decriminalise homosexuality. This revelation was made by the speaker of the parliament on Tuesday. Notably, the Sri Lankan apex court cited the landmark...
As the constitution bench hearing in the marriage equality petitions entered the seventh day here in the Supreme Court, it was announced in Colombo that the Sri Lankan Supreme Court had given the green light to a bill seeking to decriminalise homosexuality. This revelation was made by the speaker of the parliament on Tuesday. Notably, the Sri Lankan apex court cited the landmark Puttaswamy (2017) and Navtej Johar (2018) judgements in its historic ruling.
In a special determination, a bench of Chief Justice Jayantha Jayasuriya, and Justices Vijith Malalgodare and Arjuna Obeyesekere refused to find in favour of the petitioners who challenged the decriminalisation bill that was gazetted and presented in the parliament earlier this year. The petitioners had invoked Article 121(1) of the country's constitution, which provides for an ordinary exercise of constitutional jurisdiction in respect of bills, i.e., to determine whether a bill or any of its provisions was inconsistent with the Constitution.
Right at the outset, the bench stated that the petitioners' burden was high and they would have to demonstrate that the Constitution imposed a requirement for the act, which the parliament wished to decriminalise, to continue to be criminalised. "In this determination, we are tasked with the question of whether the repeal of laws which criminalise intimate acts between consenting adults is unconstitutional. Naturally, the burden is even higher for the Petitioners, as the original law had been introduced to further certain 'moral' norms as opposed to protecting the life, limb or property of persons," the bench added.
After an elaborate analysis, the top court went on the find, "The decriminalisation of sexual activity amongst consenting adults irrespective of their sexual orientation only furthers human dignity and as such this cannot be considered as being an offence that must be maintained in the statute book." In arriving at this conclusion, the bench referred to a catena of cases, including the Indian Supreme Court's Navtej Singh Johar ruling, laying particular emphasis on the separate judgements of former chief justice Dipak Misra and Chief Justice DY Chandrachud.
Applying the twin test under the doctrine of reasonable classification, the court also found that "the removal of criminalisation of intimate acts between consenting adults, which crime was based on moral imperatives of a bygone Victorian era" would be in conformity with Article 12(1) - in pari materia with Article 14 of the Indian Constitution - and would uphold the dignity of human beings. To support its decision, the court relied on the concurring opinions of Chief Justice Misra and Justice Indu Malhotra in the Navtej ruling.
With respect to the right to privacy, after excerpting paragraphs from Justice Malhotra's judgement in Navtej Singh Johar and Justice Chandrachud's opinion in KS Puttaswamy (2017, held that the right to privacy was a facet of the right to life), the bench found:
"Given that the right to privacy is a facet of the right to live with dignity, there is simply no basis for this court to come to the conclusion that there is a constitutional obligation to criminalise homosexual activities engaged in private by consenting adults, as that is a matter that is inherently private and intimate. If the parliament wishes to decriminalise such activities this court cannot stand in its way."
Ruling against the petitioners, the court held:
"The submissions of the petitioners are in fact fanciful hypotheses, and have no merit. We are of the view that the petitioners have failed to establish that the repeal in the manner proposed in the bill of sections which criminalise intimate acts between consenting adults is unconstitutional, and the bill as a whole or any clause therein is inconsistent with any provision of the Constitution...We are of the opinion that the Bill as a whole or any provision thereof is not inconsistent with the Constitution."
It is noteworthy that the three-judge bench also relied on the decision of former judge Albert Louis Sachs in National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998), in which South Africa's Constitutional Court struck down the laws prohibiting consensual gay sex. This ruling was the first in a series of many that eventually led to the recognition of marriage equality in the African nation.
Background
The penal code of Sri Lanka, a former British colony, criminalises homosexuality under two sections – Sections 365 (unnatural offences) and 365A (acts of gross indecency between persons), making it punishable with a prison sentence and a fine. The code was enacted in 1883 and not unlike the Indian Penal Code’s Section 377 (which was read down in the Indian Supreme Court’s landmark Navtej Johar judgement), is an antiquated holdover from the country’s colonial past.
In March this year, a private member bill initiated by Premnath Dolawatte, a parliamentarian belonging to the country’s ruling Sri Lanka Podujana Peramuna (SLPP) party, was gazetted. This bill sought to amend the century-old, colonial-era laws proscribing homosexual relations between consenting adults. Even as the government publicly pledged to support the bill, three loyalists of former president Gotabaya Rajapaksa, despite being members of the SLPP or supporting it, decided to challenge the decriminalisation bill. Rajapaksa was ousted last year following the island country’s worst economic crisis in history and had to temporarily seek refuge overseas after angry protestors stormed his home and office.
The petition by the Rajapaksa loyalists - K Athula H De Silva, Shenali D Waduge, Jehan Hameed - was swiftly countered by several others filed by LGBTQIA+ activists as well as allies, and eventually, led to the country’s top court clearing the path for the bill to eventually become legislation. Speaker Mahinda Yapa Abeywardena told the highest legislative body of the country yesterday, “The Supreme Court is of the opinion that the bill as a whole or as any provision thereof is not inconsistent with the constitution.”
This move is being celebrated as a historic development by LGBTQIA+ rights activists in Sri Lanka and elsewhere and has sparked hope for the queer community in the country. The last time when the proscriptions against homosexuality in the 1883 penal code were amended was in 1995, when instead of repealing them, as the government had indicated it would, the parliament instead changed the phrasing of Section 365A from ‘males’ to ‘persons’. This meant that although the prohibition had applied specifically to men until then, sexual relations between any consenting, non-heterosexual adults would thereafter attract the force of the provision.
However, this time, campaigners are looking forward to a progressive vote in the parliament. Earlier this year, foreign affairs minister Ali Sabry had reportedly told a Sri Lankan newspaper, “The government will support its position of decriminalizing same-sex relationships. We are, however, not legalizing same-sex marriages. But we would decriminalize it. I think that there is a lot of consensus for that, so let that come to Parliament.”
Now, the world waits in eager anticipation to see whether Sri Lanka becomes the fourth South Asian country after Nepal (2007), India (2018), and Bhutan (2019) to repeal laws criminalising homosexuality.