The Supreme Court of Mauritius specifically referred to Justice Indu Malhohtra's judgment in Navtej Singh Johar that homosexuality is not an aberration but a variation of sexuality.
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IN a significant case for the people of Mauritius, the Supreme Court of the country declared Section 250 of the Criminal Code, 1838, which proscribes sodomy, unconstitutional.
The court cited a 2018 judgment of the Supreme Court of India which read down Section 377 of the Indian Penal Code, 1860, which criminalised consensual sex between same-sex adults in Navtej Singh Johar versus Union of India.
A plaint was filed by a gay man challenging Section 250 of the Criminal Code, 1838 which provides for the offence of sodomy and criminalises consensual sex between consenting adults in private.
The plaintiff argued that Section 250(1) enables the police to enter his house on the mere suspicion that two adult homosexual men may be engaged in the act of sodomy. This leads to an investigation of the intimate aspect of his private life and is intrusive and undignified.
The plaintiff prayed for Section 250 to be held unconstitutional as it is in breach of Section 16 (protection from discrimination) of the 2016 Mauritius Constitution.
Section 16 of the Constitution of Mauritius providers for protection from discrimination, which is defined as "affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description."
The Mauritius government opposed the plea. One of the arguments contended by the State was that a proposed amendment to Section 250 to allow consensual sexual activities is on its agenda.
However, looking at how this issue concerns the delicate socio-cultural and religious fabric of Mauritian society, the amendment could only be introduced in the Parliament when there are necessary favourable conditions for it.
The Supreme Court of Mauritius determined whether Section 250 perpetuated discrimination against the plaintiff based on his sexual orientation.
Here, the court acknowledged that Section 16 of the Mauritius Constitution only uses the term 'sex' and not 'sexual orientation'. It went on to determine whether the term 'sex' can be interpreted to include 'sexual orientation'.
The court referred to the judgment of the Chief Justice of India (CJI) Dr D.Y. Chandrachud in Navtej Singh Johar, where the CJI held that the term 'sexual orientation' was encompassed within the meaning of 'sex' in Article 15 of the Indian Constitution.
The CJI said: "One cannot simply separate discrimination based on sexual orientation from discrimination based on sex because discrimination based on sexual orientation inherently promulgates ideas about stereotypical notions of sex and gender roles".
The court also referred to Justice Indu Malhotra's judgment where she stated: "The term 'sex,' as it occurs in Article 15, has been given an expansive interpretation by this court in National Legal Services Authority versus Union of India to include sexual identity."
The court stated that in Justice Malhotra's judgment, she acknowledged that the J.S. Verma Committee, which was set up to recommend criminal reforms, recommended that 'sex' used under Article 15 of the Indian Constitution must include 'sexual orientation'.
Finally, the court held that the Mauritius Constitution must be given a generous and purposive interpretation as it is a living document. This entails an interpretation of Section 16 to include discrimination based on sexual orientation within the meaning of the term 'sex'.
Second, it determined whether Section 250(1) is discriminatory on the grounds of sexual orientation.
Here, the court referred again to Justice Malhotra's judgment wherein she had said that sexual orientation is not an aberration but a violation of sexuality. It is an innate attribute of one's identity and cannot be altered.
The court found Section 250(1) to be discriminatory in its effect against the plaintiff on the basis of their sexual orientation.
The court said: "The fact that sodomy is an offence has a crippling effect on the plaintiff's sexual life and that of homosexual men. Every time a homosexual man engages in sexual intercourse, which is an act whereby he expresses his love for his partner, he commits the offence of sodomy."