Yatin Varma

On 06 August 2018, following the landmark judgment in the case of Navtej Singh Johar & Ors v Union of India & Ors  article 377 of the Indian Penal Code was declared unconstitutional by the Supreme Court of India. That provision of the law criminalized homosexual sex and transgender sex between consenting adults. This judgment sends a glimmer of hope to the LGBT community in Mauritius but how the dice falls remains to be seen. It was importantly highlighted in the case that:  ‘we have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the social mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination…The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual.’

In the past talking about homosexuality was like exposing sodium to air, or lighting a match in a room full of leaking gas. But things have evolved over time. Same sexual activity has been lawful in Canada since June 27, 1969, when the Criminal Law (Amendment) Act (also known as Bill C-150) came into force. In modern records, the Government of Canada has had a long history of commitments to protecting and advancing the rights of sexual diversity. In the United Kingdom, same sex sexual activity was characterized as “sinful” under the Buggery Act 1533 pioneered by Henry VIII, punishable by death. LGBT rights first came to prominence following the decriminalization of sexual activity between men, in 1967 in England and Wales, and later in Scotland and Northern Ireland. Sexual activity between women was never subject to the same legal restriction. The Sexual Offences Act 1967 was accordingly passed and received royal assent on 27 July 1967 after an intense late night debate in the House of Commons. It provided for a limited decriminalization of homosexual acts where three conditions were fulfilled: 1. the act had to be consensual, 2. the act had to take place in private and 3. the act would involve only people who had attained the age of 21. The Act abolished penal offences involving consenting same sex adults. In France, the offence of sodomy was abolished in 1791 after the French Revolution.

In New Zealand male same sex sexual activity was decriminalized in 1986. In Singapore after the exhaustive Penal Code review in 2007, oral and anal sex were legalized for heterosexuals and female homosexuals. In Trinidad and Tobago, it was held in the case of Jason Jones v Attorney General of Trinidad and Tobago that the state cannot criminalize sexual relations of the same sex between consenting adults. In Fiji following the case of Dhirendra Nadan v The State (2005) private consensual sexual conduct “against the course of nature” between adults was allowed. A similar approach was adopted in South Africa following the case of The National Coalition for Gay and Lesbian Equality v The Minister of Home Affairs (1999).

Section 250 of the Mauritian Criminal Code criminalizes sodomy between two consenting adults. Mauritius is a signatory to the International Covenant on Civil and Political Rights and Article 17 provides that everyone has the right to the protection of the law against unlawful interference with his privacy. The Covenant requires every State party to ensure that the right is enjoyed by its citizens without any discrimination on the grounds of sex. In the case of Toonen v Australia (1994), the United Nations Human Rights Committee held that the Tasmanian law criminalizing homosexual activities violated Article 17 of the Covenant. The same approach was adopted by the European Court of Human Rights in the cases of Dudgeon v UK (1981) and Norris v Ireland (1988).  In Mauritius, there has been a lot of political tiptoeing on the issue with most politicians remaining fence sitters on the question save and except for The Sexual Offences Bill(2006) to which a group of MPs including myself were vehemently opposed. Government succumbed to political pressure and the Bill was withdrawn and sent to a Select Committee. However, over the years, my stand on the issue has evolved considerably.

Collectif Arc-En-Ciel has appealed time and again to various governments to repeal section 250 of our Criminal Code. Satyajit Boolell, Director of Public Prosecutions, stated in his office’s April 2017 newsletter that the Collectif Arc-En-Ciel makes an important point as regards section 250 of the Mauritian Penal Code and that the likelihood of section 250 not passing the test of constitutionality is a high one. In the 2018 Indian judgment, it was also significantly stated :  ‘whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure that constitutional morality prevails over social morality…. In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society.’

If a country like India with its conservative and complex society coupled with its prejudices has been able to make headway, we in Mauritius can at least start a dispassionate debate on LGBT Rights. The bien-pensant opinion would be to move from certain old ideological paradigms and keep the issue simmering, not fan it into flames or let it die out until a bold decision is taken as was done for Termination of Pregnancy in specific cases during my tenure of office as Attorney General. To end, it would be appropriate to quote from Former Canadian Prime Minister, Pierre Trudeau: “There’s no place for the state in the bedrooms of the nation”.