Sri Lankan Supreme Court Cites Indian Supreme Court Judgments While Upholding Bill Decriminalising Homosexuality [Read Judgment]

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.

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