Sri Lanka’s Supreme Court gives ‘green light’ to decriminalise homosexuality: The case and the India connection

What did the court hold in ‘K. Athula H. De Silva vs. Hon. Attorney General’?

In the present case, filed under Article 121(1) of the Sri Lankan Constitution, which determines whether a bill or any of its provisions are contrary to the Constitution, three petitioners, namely, retired Army Brigadier K. Athula H. De Silva, Shenali D. Waduge, and Jehan Hameed, approached the court. Seeking to declare the ‘Penal Code (Amendment) Bill 2023 inconsistent with “one or more Articles of the Constitution”, the plea also sought approval of the Bill through a referendum, in addition to its passage in Parliament with a special majority.

However, the Bench led by Chief Justice of Sri Lanka Jayantha Jayasuriya found the petitioners’ submissions to be “fanciful hypotheses,” adding that they lacked merit. The Court held that the petitioners failed to establish that repealing Sections 365 and 365A of the Penal Code, which criminalise intimate acts between consenting adults, is unconstitutional. Further, the court held that the petitioners were unable to show how the Bill “as a whole or any clause therein is inconsistent with any provision of the Constitution” and concluded that the 2023 Bill is consistent with the Constitution of Sri Lanka.

In its judgement, the court said that “decriminalisation of sexual activity amongst consenting adults irrespective of their sexual orientation only furthers human dignity” and cannot be considered an offence “that must be maintained in the statute book.”

What is the Penal Code (Amendment) Bill 2023, and what changes will it bring if passed?

The Penal Code (Amendment) Bill 2023 aims to ensure that “all persons shall be equal before the law” and “be entitled to the equal protection of the law”, “irrespective of their sexual orientation”. It seeks to enhance the fundamental rights guaranteed under the Constitution to LGBTQ+ persons so as to enable them to live in society with dignity.

Initially published in the Government Gazette on March 17, the Bill was presented in Sri Lankan Parliament on April 4. However, it currently awaits approval from 225 parliamentarians before it becomes law. If passed, the Bill will repeal and replace Section 365 of the Penal Code and repeal in its entirety Section 365A. Both these sections criminalise intimate acts between consenting adults.

Section 365 of the Penal Code

According to Section 365, as it stood in 1883, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

However, in 1995, this was amended to say that when such an offence is committed by a person above 18 years, in respect of anyone under 16 years, they shall be punished with rigorous imprisonment for 10–20 years along with a fine and compensation for injuries incurred. While Section 365 of the earlier Penal Code was identical to Section 377 of the Indian Penal Code, 1860, the provision changed after the 1995 amendment. In its judgement, the court also noted that Sri Lanka’s Penal Code was enacted by Ordinance No. 2 of 1883, which corresponds to the Indian Penal Code, drafted by the Macaulay Commission.

If amended, the provision criminalising unnatural sex between humans will be replaced with a provision criminalising sex between a human and an animal. The new section 365 will punish “Whoever voluntarily has carnal intercourse against the order of nature with an animal.”

Section 365A of the Penal Code

Meanwhile, Section 365A, which has no analogous provision in the IPC, was introduced in Sri Lanka with the 1924 Penal Code (Amendment) Ordinance and states, “Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of an offence, and shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both, and shall also be liable to be punished with whipping.”

However, in 1995, this was amended in two ways. The first change was that an “act of gross indecency” was no longer limited to acts between two males. Moreover, the word “person” could now be interpreted to extend to all adult males or females indulging in “grossly indecent” consensual acts, even in the privacy of their own homes. The second change was the introduction of enhanced punishment for indecent acts inflicted by adults against minors. If the Penal Code (Amendment) Bill, 2023 is passed, it will repeal Section 365A altogether.

In the present ruling, Sri Lanka’s Supreme Court referred to various judgements delivered by the Supreme Court of India, most notably the 2018 ruling in ‘Navtej Singh Johar v Union of India’ and the 2017 ruling in ‘Justice K S Puttaswamy (Retd.) v Union of India’.

What were the references made to Navtej Singh Johar and KS Puttaswamy?

While referring to Section 377 of the IPC and Section 365 of Sri Lanka’s Penal Code, which are analogous provisions, the Sri Lankan Supreme Court cited a passage from the judgement of Justice DY Chandrachud (as he then was), in ‘Navtej Singh Johar v Union of India,’ where the court had briefly described the historical setting to the introduction of the Indian Penal Code, before striking down Section 377 of the IPC.

Dealing with the evolution of homosexuality as a criminal offence, Sri Lanka’s SC also referred to a passage in Navtej that spoke of the manner in which sexual conduct between two consenting adult males became an offence and was subsequently decriminalised in England.

The judgement also highlighted CJI DY Chandrachud’s statement that “Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence” and that their entitlement “should be as equal participants in a society governed by the morality of the Constitution.” It also quoted from the then-CJI Dipak Mishra’s observations on sexual autonomy vis-à-vis the right to equality and liberty.

Relying on Navtej Singh Johar, among other cases, the Court held that the “removal of criminalisation of intimate acts between consenting adults”, “would be in conformity with Article 12(1),” which deals with the Right to Equality. It also said that this decriminalisation “would uphold the dignity of human beings”.

On the aspect of privacy, the Court referred to the 2017 ruling of the Indian Supreme Court in ‘Justice KS Puttaswamy (Retd.) v. Union of India’ to say that “privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.” Relying on the same, the court reasoned that there is no basis for it to conclude that “there is a constitutional obligation to criminalise homosexual activities engaged in private by consenting adults, as the matter is “inherently private and intimate.”