Ex-SC judge Indu Malhotra hails Mauritius top court for decriminalising consensual gay sex

Former Supreme Court judge Indu Malhotra, who was quoted by the highest court of Mauritius in its recent landmark verdict decriminalising consensual gay sex, Wednesday expressed joy over the development and hoped many jurisdictions in the world will now follow the Indian apex courts judgement holding sex between consenting homosexual adults was not a crime and come forward to stop their persecution.

Former Supreme Court judge Indu Malhotra, who was quoted by the highest court of Mauritius in its recent landmark verdict decriminalising consensual gay sex, Wednesday expressed joy over the development and hoped many jurisdictions in the world will now follow the Indian apex court's judgement holding sex between consenting homosexual adults was not a crime and come forward to stop their persecution. The Supreme Court of Mauritius, on October 4, struck down a colonial-era law which criminalised carnal intercourse even between consenting adults and quoted the 2018 concurring judgments penned by Justice Malhotra and Justice D Y Chandrachud, the present Chief Justice of India. A five-judge constitution bench of the top court had on September 6, 2018 unanimously held that consensual sex among adult homosexuals or heterosexuals in private space is not a crime and struck down part of a British-era law, Section 377 of the Indian Penal Code, saying it was ''irrational, indefensible and manifestly arbitrary''.

"I am very happy that the Marutitus Supreme Court has followed the judgement of Indian Supreme Court in the Navtej Singh Johar case. I am extremely grateful that my judgement is used and quoted by the Marutitus Supreme Court," Justice Malhotra told PTI. The former top court judge said homosexual people are different and cannot be persecuted just because of their sexual orientation. "I believe that the prosecution of consenting adults for this (consensual gay sex) amounts to grave human rights violation. I hope that many jurisdictions in world will follow this and decriminalise it," Justice Malhotra said. "Such persons are just like that and they cannot be persecuted for such consensual acts," she addded. A two-judge bench of the highest court in Mauritius comprising D Chan Kan Cheong and K D Gunesh-Balaghee dealt with section 250 (1) of the Criminal Code, 1838, which proscribed sodomy and termed it unconstitutional. "Taking into consideration all the above, we find that section 250(1) of the Criminal Code is discriminatory in its effect against the plaintiff in breach of section 16 of the Constitution Inasmuch as it criminalises the only natural way for him and other homosexual men to have sexual intercourse whereas heterosexual men are permitted the right to have sexual intercourse in a way which is natural to them.

"We, accordingly, declare that section 250(1) of the Criminal Code is unconstitutional and violates section 16 of the Constitution in so far as it prohibits consensual acts of sodomy between consenting male adults in private and should accordingly be read so as to exclude such consensual acts from the ambit of Section 250 (1)," the Marititus SC said.

The judgment of the Mauritian top court referred to Justice Malhotra's interpretation of Article 15 of the Indian Constitution relating to non-discrimination on the ground of sex.

"Malhotra J., for her part, stated as follows:- 15.1. The term 'sex as it occurs in Article 15 has been given an expansive interpretation by this Court in National Legal Services Authority v Union of India... to include sexual identity...

"Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their 'sexual identity and character," the judgement said quoting Justice Malhotra.

It also quoted Justice Chandrachud and referred to the part which said "One cannot simply separate discrimination based on sexual orientation and discrimination based on sex because discrimination based on sexual orientation inherently promulgates ideas about stereotypical notions of sex and gender roles." The verdict of the Mauritius top court came on a lawsuit filed by Ah Seek vs State of Mauritius and an advocacy group was an interested party. They had challenged the validity of section 250 (1) of the the Criminal Code. It was alleged in the plaint that the provision enabled police to enter the house of the petitioner on mere suspicion that two adult homosexual men may be engaged in the act of sodomy. In 2018, Justice Malhotra, who was part of the five-judge constitution bench that unanimously held as unconstitutional the part of Section 377 of the IPC that criminalised consensual gay sex, had written a 50-page concurring verdict. ''History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution,'' Justice Malhotra had said in her 50-page verdict. She had said the members of this community were compelled to live under the fear of reprisal and persecution which occurred due to the ignorance of the majority to recognise that homosexuality is a ''completely natural'' condition which is part of a range of human sexuality.

Such persons deserve to live a life unshackled from the shadow of being 'unapprehended felons', the lady judge had said.

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