Yesterday (September 6), a five-judge bench of India’s highest court ruled that a 160-year old law banning sex “against the order of nature” amounted to discrimination on the basis of sexual orientation and was unconstitutional.
“History owes an apology to members of the community for the delay in ensuring their rights,” Indu Malhotra, one of the five judges on the bench at the Supreme Court ruling.
The Supreme Court ruling proved to be a landmark moment in the country’s LGBTIQ rights movement and a collective sigh of relief for those unfairly oppressed for decades.
While Indians rejoice, their neighbours are left wanting as Sri Lanka remains a country that continues to criminalise a segment of our community.
While Sri Lanka and India are vastly different, many are of the understanding that we share similar South Asian values, and while Indians are able to accept equal rights for all, why has Sri Lanka been unable to make any headway?
No political patronage in Sri Lanka?
Internationally recognised LGBT rights activist and the executive director of EQUAL GROUND, Rosanna Flamer-Caldera said, “What we see today in India is a result of a journey spanning nearly two decades”, stating that what India did right is that they shed a positive light and an awareness on the LGBTIQ community; Bollywood celebrities and Indian politicians have been outspoken about their support for gay rights, while in Sri Lanka, there only exists a powerful opposition. She said that in our country those in power are still afraid to voice an opinion in favour of equal rights.
Jake Oorloff, artist and LGBTIQ activist said,
“while the sociopolitical landscapes within our two countries cannot be compared, India’s decision will serve as a ripple effect in the region.”
He further provided that within the island, there is a lack of political patronage as many politicians gravely pander to religious institutions which is why, despite extensive efforts within the community and its allies, we are yet to experience any progress.
A response to the call by the Public Representations Committee (PRC) in 2016 for public submissions relating to proposed constitutional reforms, titled ‘A Meaningful Right to Equality and Non-Discrimination: Recognising Sexual and Gender Identities’ provided that a primary struggle of LGBTIQ communities in Sri Lanka has been to secure the right to equality; principally the impact of provisions 365 and 365A in the Penal Code which deal with ‘gross indecency’ and ‘unnatural sex.’
There has been continued refusal to repeal these acts on the basis that no members of the LGBTIQ community have been prosecuted under these provisions. However, Indians too tackled with this same argument, over the ruling in 2009 which quashed Section 377 of the Indian penal code, soon overturned in 2013, citing that the provision has been used so infrequently and against such a “minuscule fraction” of the population that it could not be said to violate Indians’ constitutional rights. However, the ruling made on Thursday is testament to the invalidity of this argument.
Author of ‘The Sarong-Man in the Old House and an Incubus for a Rainy Night’, a queer-themed short story that won the Commonwealth Short Story Prize for Asia in 2013, Michael Mendis said,
“In my opinion, there are a number of legal obstacles in Sri Lanka that distinguish us from India. Our courts are different. Our constitution is different in design. The relevant law is much broader and much vaguer. But, the biggest difference between Sri Lanka and India is the ability of our LGBT ‘movement’ to reach its own grassroots.”
Michael, who has contributed to the work on LGBT rights in Sri Lanka in various ways since 2010 provided, “The Indian Supreme Court is an impressively progressive court when it wants to be. Not just in LGBT rights, but on many political freedoms and socio-economic rights; the court has spoken with resounding clarity in the past. I am yet to see much of that trickling down to Sri Lankan law or to public opinion. Our media hardly engages with things like that. I would be the happiest to be proven wrong.”
Regardless of the varying levels of bleakness existing within the island, many LGBTIQ activists and community members alike were quick to express their optimism over India’s ruling. While Sri Lanka is nowhere near what India has achieved, they are hopeful.
Ursula Bastianz, a member of Sri Lanka’s LGBTIQ community said,
“It’s fantastic news, I hope this paves the way for some positive change within our country and our legal system as well, we’re hopeful and kudos to everyone in India who fought to make this happen for their countrymen.”
By Dimithri Wijesinghe