Now in India, the Freedom of Sexual Orientation is a fundamental right. It is unquestionably a victory of love and affection. The Indian Supreme Court, through its judgment, created a safe space for gay, lesbian, bisexual and transgender persons, to express their sexual orientation. This land mark judgment was made by a bench of nine judges. According to their judgment this right is protected under the right to individualism, a right that anyone can enjoy. Further, the judgment states, “sexual orientation is an essential component of right to privacy. Discriminating persons based on their sexual orientation is a serious violation of self-respect and self-value of individuals. In this society, the protection of sexual orientation of each individual must be ensured.”
In India, Right to Privacy is a human right, protected under the law; therefore critically treated as a fundamental right. Hence, the above mentioned judgment became an alternative that could be used to replace certain clauses in the Indian law that promotes discrimination. The Article 377 of the Indian Penal Code states that whoever voluntarily has carnal intercourse against the nature should be punished.
Yet, at the time this law was introduced by Lord Macaulay in 1860, no clue was left in the content defining ‘carnal intercourse against nature’. The sole purpose of establishing this clause seemed to belegal right tohunt down the homosexual community existed at that time. The law was imposed on Sri Lanka as Article 365(A) with the same unspecified definition. Anyone caught with such behavior was whipped. Similar to India, the Sri Lankan leaders preferred to be the obedient servants of the colonial masters, never questioned the law. In actual terms this is not the real distressing fact. The fact of the matter is that, even after 134 years, we still have not raised the question to ourselves. Unlike colonial era today, there exists an excellent global definition for human rights.
The Universal Declaration of Human Rights defines Human Rights as ‘equal and inalienable rights of all members of the human family’. Out of the immense volume of human rights listed out, only a selected few has been implemented through the legal system of Sri Lanka. It is within this limited space that a citizen can only take legal action against any form of discrimination or violation of Fundamental Rights (FR’s) by the Executive or the Administration. Sri Lankans are entitled only to a limited part of the globally accepted list of Human Rights.
The law of the country as stipulated by the 1978 constitution does not even completely acknowledge that citizens’ rights need to be protected at least within the small space given in the current constitution. Judgments delivered by Justice Mark Fernando was the only instance in the entire history where the Sri Lankan law recognized the right to live as a fundamental right. Yet, the judgment was vaguely reviewed, the particular case is kept at a distance from being accepted by the legal profession as the law stipulated by the constitution.
This unjustifiable insignificant space given to fundamental rights was depicted at many instances by the officialdom. If not for this, how could bureaucrats continue to turn a blind eye towards forced disappearances of persons in white vans, the silent protest of Northerners continuing for over 200 days, the missing ‘Office of the Missing Persons’?
Contrasting to Sri Lankan judiciary, its Indian counterpart constantly uses judgments of its Supreme Court in the local sphere. Sri Lankan judiciary needs to advance further to receive such compliments. There is hardly any possibility for Sri Lanka to respect issues such as sexual orientation or individualism, where even Fundamental rights such as right to live operate in a narrow ally.
As Sri Lankans we hail freedom even in the National Anthem yet there are hardly any evidence in respecting individualism and sexual orientation. Sri Lankan Judiciary grows in reverse, they say. And that is the main reason how the 134 year old archaic clauses of the Sri Lanka Penal Code were made tougher in 1995 narrowing down the space for Fundamental rights.
134 years is significantly a very long time. In the sense, the nearly 134 year old Sri Lanka Penal Code is very old and disabled. It is a system that cannot fulfill current demands. The best examples are the violation of fundamental rights of citizens through Article 365 and 365 (A) of the Penal Code of 1883. Despite the top most ever increasing current demands are the protection of rights for sexual orientation and the need to protect right to privacy.
While Sri Lanka stayed stagnated at this point, the British Colonial masters who imposed this law on us, identified that existing laws were not addressing the growing social changes and they amended the law appropriately rejuvenating their legal culture. These amendments started to set in since the 1960s. In this trend England decriminalized homosexuality by 1967. Years later, Scotland and Northern Ireland decriminalized homosexuality accordingly.
In the meantime our neighboring India, for years, was continuing fights to protect the rights of homosexual persons and further, the ‘Hijras’ gained the social identity as the ‘third gender’. Fighting with a series of court cases, civil society institutes like the Naz Foundation, continued to challenge the nature of the existing law. As a result of these unending efforts, in 2009, the Delhi Court delivered a landmark judgment decriminalizing homosexuality ( Naz Foundation vs NCT of Delhi). The Court stated that the judgment would hold until the Parliament would opt to amend the law. Thus, it disabled the possibilities of arbitrary arrests of persons by the Police and any other law enforcement agencies. As our neighbours move on, we need to find where we have got stagnated.
It is these challenging moments that give rise to the intolerance and inflexibility of us as a nation. It seems that Sri Lankan unwavering stance apply to these sort of genuine social issues. Even if we keep aside the demand to decriminalize homosexuality, that has always led to the rise of outrage attacks from mobs labeled as ‘Samaritans’, we are not short of laws that are misused by law enforcement agencies to discriminate persons with sexual orientations other than being hetero sexual. Vagrant’s Ordinance, established by the British colonial masters to clear the streets of idling beggars, is currently being (mis)used by native Sri Lankan Police officers to arrest and harass the homosexual persons. In order to end the discrimination an attempt was made to seek Cabinet approval to alter the law. Thus, the so called ‘samaritans’ started to protest calling their likeminded mobs to support them to put an end to the effort. They publicized the law amending effort as setting laws to enable same sex marriage and encouraged an irrational ideology among a selected segment of the society. Their motive is clear, yet the question is why Sri Lanka is following this same old irrational, inflexible path at every turning point?
Majority among us still suffer from homophobia, frown upon seeing a transgender. Humiliate non hetero sexual orientations. Fail to see all as human beings irrespective of their sexual orientation. Be terrified by others daring self-revelations against his or her own embarrassment of self. Thus become violent over another person’s free will. This phobia has carved so deep in our society and fails every attempt made to convince that this is an essential part of securing human rights. Attempting to make these persons understand the rights based perspective may be not so different from attempting to teach mathematical concepts of integration to cows. Those who attempt will be labeled.
Yet, parallel to chaos in Sri Lanka, India hailed the individual right to sexual orientation. Generally societies fought against rulers to win their rights. Ironically in Sri Lanka we have to fight with our own society, our relatives and neighbours. It may be hardest obstacle in Sri Lanka in her attempts to hail human rights equally in the society.
Hats off India!
- Radika Gunaratne (AAL). Radika Gunaratne is an Attorney-at-Law on Human Rights & RTI , Activist and a Journalist.