On Tuesday, the five-judge Constitution bench led by Chief Justice of India DY Chandrachud called the argument that the right to marry isn’t a constitutional right, “far fetched”. The same day, across the Palk Strait, Sri Lanka speaker Mahinda Yapa Abeywardena announced in the Sri Lankan parliament that the country’s Supreme Court in Colombo had held that decriminalising homosexuality was not “inconsistent with the Constitution”.
Consequently, the Penal Code (Amendment) Bill, presented before the Parliament by Sri Lanka Podujana Peramuna (SLPP) MP Premanath C. Dolawatte on April 4 can be passed with a simple majority — and will not require either a two-thirds majority or a people’s referendum, as sought by the petitioners who challenged this bill in court on April 17.
The Sri Lanka Supreme Court heard a batch of petitions to decide whether it was constitutional to change section 365 and section 365A of the island nation’s penal code that would lead to decriminalising homosexuality. It further held that such changes, when brought about by the legislature, would affirm the constitutional rights of sections of Sri Lankan society.
Section 365 (carnal intercourse against the order of nature) in Sri Lanka is the equivalent of India’s section 377 (unnatural offences under the Indian Penal Code). Section 365 (A) in Sri Lanka pertains to offences under “Gross Indecency”.
The motivation for the petitioners seeking decriminalisation stemmed from the will as well as fear that if they do not start their legal battle now, the lesbian, gay, bisexual, transgender, queer/ questioning, intersex, asexual (LGBTQIA+) community in Sri Lanka can never move forward. “We have been forced to defend ourselves,” says one of the petitioners in this case, Pasan Jayasinghe, a 34-year-old PhD scholar and queer activist based in Colombo. “And so many countries like India are showing us that this is a gateway to a larger social reform. That the state cannot simply call us a criminal and take us to jail.”
For petitioners like Pasan and 45-year-old transgender man Thenu Ranketh who is the director of Colombo-based NGO Venasa Transgender Network, this case is at once a culmination of their efforts and a starting point towards a larger discourse on the LGBGTQIA+ community.
And it is not just their peers but mental health professionals, lawyers, former undersecretary general of the United Nations, Radhika Coomaraswamy and former Vice Chancellor of the University of Colombo, Savithri Gunasekara who are part of more than a dozen intervening petitioners in the case.
“I thought in my lifetime it was impossible to speak about LGBT rights in public because of Sri Lanka’s culture,” said Thenu. “But, look where we are now. We have allies who have filed cases. They are supporting us in public. We are raising visibility. This case has helped us to make so many connections.” Thenu spoke to this correspondent in Sinhalese with the help of an English translator.
Opposition to homosexuality
The arguments presented before the Sri Lankan court against Dolawatte’s progressive bill followed a similar line as those presented before the Indian apex court by the Union of India: that recognition of same-sex desire, and rights and entitlements, threatened the very fabric of heterosexual society.
Ironically, Dolawatte’s own political party, the Sri Lanka’s People’s Front known as Sri Lanka Podujana Peramuna (SLPP members Jehan Hameed, Shenali Waduge and Athula De Silva) opposed the bill in the court on the grounds that it will expose children to child abuse, increase cases of HIV/ AIDS, it is against Buddhism and that it is inconsistent with (Articles 120 and 121) of the constitution of the Democratic Socialist Republic of Sri Lanka.
“Exposure to lesbian, gay, bisexual and transgender [LGBT] programmes in schools could impact the free decision-making power of children and give rise to transgender children,” the opposing petitioners held.
“The court [can only] determine whether the Bill is consistent with the Constitution or not,” said petitioner Radika Gunaratne, a human rights lawyer and trainer on gender equity and social inclusivity. In Sri Lanka only the Parliament can decide on decriminalisation, she added.
However, the legal battle has opened up the space for queer Sri Lankans to voice their protest against their criminalisation — a battle that the Indian queer community has fought in the courts since the 1990s, when a Delhi-based non governmental organisation AIDS Bhedbhav Virodhi Andolan (ABVA) filed the first petition in the Delhi high court challenging Section 377. Though the petition never went anywhere, it was another petition filed in 2001 by another organisation, Naz Foundation (India) Trust, that eventually led to the reading down of the criminal section in the Indian Penal Code to not apply to consenting same sex desiring adults. The high court verdict was challenged and overturned by the Supreme Court in 2013. And it was only in 2018, when a clutch of petitioners including Navtej Johar, moved the Supreme Court seeking decriminalisation. On September 6, 2018, a constitution bench of the top court read down the act.
In Sri Lanka, the intervening petitioners have argued in the top court that Sections 365 and 365A of the Penal Code are “misused by State authorities, and particularly the Sri Lanka Police to mistreat LGBTQI+” community. “This mistreatment extends to the infliction of physical and sexual violence, detention without cause, and subjection to forced anal and vaginal examinations,” the petition states. The phrase “any act of gross indecency” in section 365A has been used extensively against the homosexual community, the petitions say adding that “even those seen merely holding hands have been arrested.”
“There are several cases of police torture against individuals of the community,” said Gunarate. “And because of the criminalisation, they go through double victimisation.” In cases of intimate partner violence (within the queer community) which Gunaratne has handled, she said she cannot get a redressal from the system because the police will prosecute the perpetrator and the victims of domestic violence under these sections.
Way ahead
With the Sri Lanka top court paving the way for the bill to be heard in the Parliament, the occasion is being met with cheer over the top court’s recognition that the LGBT communities have been denied a constitutional right.
This fight for equal rights in Sri Lanka has a specific significance given its place in the world as a debt-ridden island with poor standards of human rights during its bloody civil war. The complaints of barbaric violations by the Sri Lankan army during its 30-years of civil war before defeating the banned Liberation Tigers of Tamil Eelam (LTTE) in 2009, continues to be a matter of concern among the international community.
And in recent years Sri Lanka has reeled under multiple crises. The Easter Sunday terror attacks in April 2019 which killed more than 250 civilians was followed by three changes of governments in Sri Lanka. The island’s debt worsened during the Covid pandemic in 2020. For much of last year, there was a shortage of food, medicines, fuel, electricity, and jobs. Suffering their worst economic crisis, Sri Lankas went on mass protests from April to August last year forcing the then President Gotabaya Rajapaksa to flee the island-nation for seven weeks.
Like any other emergency situation and crisis, it affected the minorities the most including the LGBTQIA+ community. “Some of the trans people are on the brink of starvation,” said Thenu. “Almost no one has returned to normalcy or stability.” So, the struggle due to lack of access to basic rights such as health, education and jobs is also a part of an emerging discourse due to the case. “Which is why I think that this is the state’s responsibility and it should not just be a private member’s Bill,” says Gunaratne. “But, this is an important start.”
The petitioners cited legislations across the world including Navtej Johar versus the Union of India (2018).
The judgements and arguments first in the Delhi high court and later in Supreme Court on 377 has served as an inspiration to the case in Sri Lanka, says queer feminist and advocate, Ponni Arasu who as part of the Alternative Law Firm, (among the coalition of ‘Voices Against 377’, one of the intervenors in the Delhi high court hearings), was at the helm in drafting the arguments at the time.
Arasu pointed to similarities in how Sri Lanka is countering the argument that decriminalisation is against Sinhalese-Buddhist culture with how they opposed the opinion that section 377 helped uphold Indian culture. “This is why our arguments are publicly available so it can be used by anyone,” said Arasu. “And a major influence outside the court, is that the case in India has opened up resources in South Asia (as opposed to Western publishers) which can be accessed by the Queer community in Sri Lanka.”
Several countries including the UK, USA, South Africa, have decriminalised consensual homosexual relationships. The Lankan petitioners have also taken the example of another troubled neighbour, Pakistan who in 2018 enacted the Transgender Persons (Protection of Rights) Act which is considered one of the most progressive laws in the world.
So notwithstanding what happens in the Parliament, the community and their allies believe it’s a flashpoint. “It’s a movement where we have to catch up with the changing times. There is no coming back from this,” said Sarala Emmanuel, a human rights activist. “Because of what’s happening in India and the access to social media, Tamil pop culture, the younger generation is coming out to fight for an equal life.”
Arasu said that this case is an opportunity for the queer community in Sri Lanka to have the tough conversations on class and ethnicity and move from an institution-based approach. “Post-war, spaces working on LGBT rights became more institutionalised but activists in Sri Lanka have said that this has not resulted in more access to helplines and shelters when queer folks have faced violence and are out of homes,” said Arasu. ‘In India, through the process of the legal battle against 377 we became more confident individuals and we eventually came together as a community. I hope that happens to the Sri Lankan queer community too.”