As Sri Lanka’s Supreme Court decides that decriminalisation of consensual same-sex relationships is not inconsistent with the country’s Constitution, the island nation is ushering in a new era for its LGBTQIA+ community. A three-judge bench of the Sri Lankan Supreme Court — comprising Chief Justice Jayantha Jayasuriya and Justices Vijith Malalgoda and Arjuna Obeyesekere — confidentially delivered the verdict to Parliament Speaker Mahinda Yapa Abeywardena, who made the official announcement on Tuesday, May 9. The court was hearing a batch of petitions against the Penal Code (Amendment) Bill 2023 that was tabled by Member of Parliament (MP) Premnath C Dolawatte, seeking decriminalisation of penal code provisions that deal with same-sex relationships and are often used to harass LGBTQIA+ persons. Many intervening petitions by LGBTQIA+ individuals, organisations, and allies were also filed in the Supreme Court.
Incidentally, the turn of events in Sri Lanka comes at a time when its neighbouring India is witnessing a landmark legal battle of its own, with the Supreme Court of India currently hearing a batch of petitions seeking marriage equality for LGBTQIA+ persons. While the Union government has opposed the petitions in strongly-worded terms — both in its affidavit and hearing — the apex court has made observations grounded in reality and lives of LGBTQIA+ persons. The Union government has also agreed to form a committee headed by the Cabinet Secretary to look into what administrative changes can be made in the matter.
The history of the opposition against Penal Code sections that criminalise LGBTQIA+ lives in Sri Lanka has been different from that in India, where consensual homosexual activity was decriminalised with the reading down of Section 377 of the Indian Penal Code (IPC) in 2018. Though the current scenarios in Sri Lanka and India are vastly different — with people of one country demanding the decriminalisation of their existence and the other demanding legal recognition — they converge at one question: do LGBTQIA+ persons not have the right to make their own choices?
In India, Section 377 of the IPC 1860 was the first ever codified legislation concerning same-sex relationships. The Section which deals with ‘unnatural offences’ says, “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” For nearly a decade and a half, this criminal law was a threat that intervened in the lives of LGBTQIA+ individuals.
It was in 2009 that the Delhi High Court, for the first time, partially struck down Section 377 while ruling that consensual sex between adults of the same gender was legal in the country. The verdict came in the wake of a public interest litigation (PIL) filed by a non-governmental organisation (NGO) called Naz Foundation, which works on issues concerning HIV and sexual health. In 2013, however, the Supreme Court reversed the Delhi HC judgement and once again upheld Section 377, stating that the matter only affects a “minuscule minority” of the citizens of India. Five years and multiple review and writ petitions later, another bench of the Supreme Court finally decriminalised the archaic law in September 2018.
The history of Sri Lankan laws pertaining to LGBTQIA+ relationships also stems from the 1800s. The two primary legal provisions that criminalise same-sex relationships in the country are Section 365 and 365A of the Penal Code of Sri Lanka. Section 365 states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with [simple or rigorous] imprisonment for a term which may extend to ten years, and shall also be liable to a fine.”
Section 365A, on the other hand, had initially stated this: “Any male person, who in public or private, commits, or is 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.”
This Section went through an amendment in 1995, as part of which the term “male” in the legislation was replaced with the term “person” — a move that brought lesbianism explicitly within the folds of the law. Further, through the amendment, the term of imprisonment was increased to between 10 and 20 years if the offence was committed by someone over the age of 18 on someone below the age of 16.
The LGBTQIA+ community made fervent calls for the decriminalisation of these provisions in the years that followed, with the demand gaining major traction in 2018. In October that year, former President Maithripala Sirisena of Sri Lanka Freedom Party replaced then Prime Minister Ranil Wickremesinghe with Mahinda Rajapaksa. During a rally later, Maithripala Sirisena controversially stated that he was against the “butterfly lifestyle” of Wickremesinghe, adding that important decisions of the government were not being made by the President or senior Cabinet ministers but by Wickremesinghe and his “butterfly caucus”. Butterfly is a queerphobic slur in Sinhala language.
In this backdrop, Opposition party Janatha Vimukthi Peramuna (JVP) came out in support of equal rights for LGBTQIA+ persons in Sri Lanka, with the JVP-led alliance allotting special focus to the community in its election manifesto for the 2019 Presidential elections. This was the first time a political party took a public stand in support of the community. Sri Lanka Podujana Peramuna (SLPP) however won the elections.
In 2022, MP from Colombo electoral district Premnath C Dolawatte, of SLPP, presented a Private Member’s Bill to the Parliament seeking to decriminalise same-sex relationships. He submitted the Bill to the Parliament on August 23, 2022, and on the next day handed it over to Wickremesinghe, who was elected as Sri Lanka’s ninth President via the Parliament on July 20 that year. On February 9, 2023, Minister of Foreign Affairs MUM Ali Sabry said that the government will support the Bill decriminalising consensual same-sex relationships, but will not be legalising same-sex marriages. The Bill was published in the gazette on March 22, and republished on April 4.
On April 19, the Bill was challenged at the Sri Lanka SC by retired Army Brigadier Athula De Silva, political analyst Shenali Waduge, and businesswoman and political figure Jehan Hameed. In their petition, they argued that the amendment was a “vehement infringement” on Constitutional Articles, and if it comes into force, will fail to protect children below 16 years of age from sexual exploitation. They further claimed that the decriminalisation will increase the number of HIV cases and endanger the “national security of the republic since it has the potential to destroy the very fabric of what constitutes a state, that is the individuals, families, communities, economic and socio-political institutions, and the military and police forces which guarantee the protection of state institutions.” They also argued that homosexual activity was contrary to the principles of Buddhism and therefore violates Article 9 of the Sri Lankan Constitution, which states that the Republic of Sri Lanka shall give Buddhism the foremost place and it is the duty of the State to protect and foster the Buddha Sasana.
Soon after this petition, several intervening pleas were filed in support of the Bill, including by LGBTQIA+ rights organisations, activists, academics, teachers, and mental health professionals, stating that the Bill will be against the “historical discrimination that is faced by approximately 8-12% of human beings living in Sri Lanka, including the horrendous acts of discrimination and violence, sometimes perpetrated by the State itself, all of which is enabled by the provisions this Bill seeks to repeal.”
The intervening petitioners also dismissed the arguments made by the opposite party that this will expose the children to abuse, and argued that the move would in fact bring in a better environment to combat the HIV epidemic. “Decriminalising homosexual activity resulting in a lapse in national security or an increase in HIV transmission is a fanciful assertion… the contrary is true, and decriminalisation would herald a better environment, more conducive to combatting the transmission of HIV/AIDS,” one of the petitions contended.
Since homosexuality is not “contagious”, the petitioners’ argument that decriminalisation will lead to “indiscipline and lack of confidence in the Sri Lanka military” and “increase of HIV/AIDS” fails, the intervening petitioners further argued.
Meera Nadaraja, a trans activist from Sri Lanka, said the Sri Lankan legislation concerning LGBTQIA+ persons was outdated and unnecessary. She also pointed out an important and practical connection between sections 365, 365A and section 399 (cheating by impersonation). “Section 399 is slapped against transgender persons in many instances, as the way we look might not align with our official ID. This section is used to target us, and sections 365 and 365A may be added later as the latter is very much a criminal offence,” she said, adding that this penal provision impeded trans persons from enjoying complete freedom and liberty.
Ambika Satkunanathan, a human rights lawyer and activist, said the petitioners’ argument that decriminalisation of consensual same-sex relationships would lead to child abuse is not based on fact, and is instead intended at fearmongering and misleading the public. She also wondered why the government did not present the Bill in the Parliament by itself. “As a Private Member's Bill, it still has to go through the authorisation of state entities such as the Attorney General and the Minister, and the Cabinet if the Minister does not approve the Bill,” she said.
Ananda Galappatti, a medical anthropologist and a practitioner in the field of mental health and psychosocial support (MHPSS) in crisis settings, said that the petition submitted by mental health practitioners was also a professional statement. “It is important that we counter the legacy of harmful practices of the past, and highlight the modern state of knowledge and practice that does not pathologise LGBTQIA+ persons. We echoed many of the arguments and sentiments made by our Indian counterparts back in 2018. We affirmed that diverse sexual orientations reflect the range of normal human sexuality, besides emphasising that the stigma and discrimination towards LGBTQIA+ persons is harmful to their mental health and wellbeing. We have made written submissions to support this based on both local and global research,” he said.
Back in 2021, the Sri Lanka College of Psychiatrists had also released a statement in support of the decriminalisation. “The Sri Lanka College of Psychiatrists would like to categorically state that we do not endorse the view that homosexuality is due to a disease of the mind or body… This myth that homosexuality is a mental illness is not in keeping with the evidence based science practised by our membership… We would like to strongly urge the authorities to change Article 365 of the penal code which states that homosexuality is a criminal act. This archaic law should be abolished and homosexuality decriminalised in Sri Lanka,” the statement read.
In its final judgement, Sri Lanka’s apex court observed that the petitioners have submitted little to nothing to support their proposition, other than a singular point that HIV and AIDS affect those engaging in same-sex intercourse more than those engaging in heterosexual intercourse. In fact, the material submitted also does not support their position that HIV and AIDS are only prevalent in homosexual persons, or that the proposed amendment will result In an increase In the number of those afflicted with HIV and AIDS, it added.
Further, the argument that the Sri Lankan Armed Forces and police would be destroyed by HIV or AIDS if the sections are repealed “descends to the realm of the absurd”, the court stated, adding that it was unsurprising that the petitioners did not adduce any scientifically acceptable evidence to support this line of argument.
The judgement quoted extensively from the Navtej Singh Johar vs Union of India case that decriminalised consensual same-sex relationships in India.
(With inputs from Ponni Arasu)