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Rights rainbow across South Asia? After progress in Nepal and India, Sri Lanka set to decriminalise homosexuality

Yet another legal victory for the gay community in South Asia signals that some nations in this region are going through a tectonic shift in their respective constitutional jurisprudence through the judiciary, which is incrementally changing and challenging societal prejudices on the rights, recognition and dignity of the gender and sexual minorities. 

ON Tuesday, the Supreme Court of Sri Lanka, in K. Athula H. De Silva & Ors versus Ms. Harippriya Jayasundara, dismissed the petitions challenging the constitutionality of the Penal Code (Amendment) Bill, 2023. The amendment Bill intends to repeal Sections 365 (unnatural offence) and 365A (acts of gross indecency between persons) of the Penal Code, 1883 (as amended in 1995), criminalising intimate acts between consenting adults, for being unconstitutional.

The court’s Bench, led by Chief Justice Jayantha Jayasuriya and comprising Justices Vijith K. Malalgoda and Arjuna Obeyesekere, rejected the petitions, terming them as “fanciful” and having “no merits”.

The court stated that the Bill, which intends to repeal laws that make the right to sexual orientation a criminal offence, would ensure that all persons shall be equal before the law and be entitled to equal protection of the law, irrespective of their sexual orientation. In fact, the Bill would enhance the “fundamental rights guaranteed to them under the Constitution and enable them to live in society with dignity.”

Several petitions were filed at the Supreme Court of Sri Lanka requesting a declaration that the proposed Bill is inconsistent with the Constitution of Sri Lanka. The court remarked that any regulation of conduct deemed indecent, done in private between consenting adults, is a violation of the constitutional right to privacy and liberty.

It observed, “We have determined that it is not the business of the law to regulate private consensual sexual encounters between adults. The same applies to issues of privacy, decency, and/or indecency between adults.”

According to Section 365, voluntary “carnal intercourse against the order of nature” with any man or woman is punishable with imprisonment of up to ten years and a fine. On the other hand, Section 365A punishes a person for the act of gross indecency committed in public or private, for a period which may extend to two years or with a fine or both. Separate punishments are mentioned in both provisions when the act is committed against a person under the age of 16 years.

Section 365 of the Sri Lankan Penal Code is similar in its language to Section 377 of the Indian Penal Code, which was read down to decriminalise consensual sex between same-sex adults in Navtej Singh Johar versus Union of India (2018).

Two of the primary grounds for decriminalising and proposing to decriminalise the offence of consensual sex between same-sex adults, invoked by the Supreme Courts of Sri Lanka and India respectively, are the right to dignity and privacy. While the right to dignity and privacy is understood as an intrinsic part of the right to life and personal liberty, enshrined as a fundamental right under Article 21 of the Constitution of India, similar interpretations are found under Part III of the Sri Lankan Constitution guaranteeing fundamental rights.

India decriminalised homosexuality in 2018, and the Supreme Court of India is now hearing a batch of petitions, in Supriyo@Supriya Chakraborty versus Union of India & Ors, on the recognition of marriage equality, attempting to determine whether existing laws could allow non-heterosexual couples to legally marry.

Nepal is leading the way forward for South Asian countries in the full realisation of the rights of gender and sexual minorities.

On March 22, a Bench of the Supreme Court of Nepal, comprising Justices Nepal Hari Prasad Phuyal and Tanka Bahadur Moktan, recognised marriage equality in its judgment in Adhip Pokharel & Tobias Volz versus Ministry of Home Affairs & Department of Immigration, and asked Nepal’s Ministry of Law and Justice to prepare an equal marriage law or amend existing laws to accommodate the principles of equal marriage.

The debate on the recognition of non-heterosexual marriages in Nepal began way back in 2007, when the Nepalese Supreme Court gave a judgment in Sunil Babu Pant versus Government of Nepal (2007) wherein the court gave legal recognition to the third gender. The court in this judgment observed that the right to marriage is an inherent right of an adult, based on their free consent and will.